A Will is not a once-in-a-lifetime document and can and should be continually amended to reflect certain lifestyle changes during your lifetime. In South Africa, major life events including but not limited to marriage, divorce, the birth of children, and significant changes in assets can completely change or put the legal effect of a Will at risk. Such risks include possible unintended disinheritance, costly litigation, and family conflict. This article explains the most common triggers for revised Wills and why updating your Will regularly is essential.
1. Marriage
In terms of the Matrimonial Property Act,[1] there are three main marital regimes in South Africa, namely marriage in community of property and marriages out of community of property, either with or without the accrual system.
If you marry in community of property, your assets and liabilities (both pre- and post-marital) automatically form a joint estate. A spouse therefore holds a 50% undivided share by virtue of such marriage. Consequently, if your Will was drafted before such marriage and not updated thereafter, a testator/testatrix can only bequeath their own 50% share of the joint estate. This may result in outcomes that conflict with the intentions expressed in an outdated Will.
Spouses married out of community of property with the accrual system should be aware that, upon dissolution of the marriage (whether by death or divorce), the surviving spouse may have a claim equal to half the difference between the growth in each spouse’s respective estates during the marriage. This claim must be calculated and settled from the deceased person’s estate regardless of the terms of the deceased person’s Will.
Spouses married out of community of property without the accrual system (if they have not acquired any assets jointly) are generally less affected, as each spouse retains their separate estate. However, it is always advisable to review and update your Will after marriage to align it with your current circumstances and to avoid any potential ambiguity during estate administration.
Note that a subsequent marriage will not invalidate your Will in its entirety. Instead, the relevant matrimonial regime will be considered during the administration of your estate upon death, potentially overriding or adjusting certain provisions of your Will to reflect spousal entitlements.
2. Divorce
Divorce does not automatically revoke a Will; however, it is advisable to update your Will within three months from date of divorce to prevent any benefit accruing to an ex-spouse. Section 2B of the Wills Act[2] allows the testator/testatrix a three-month window period from date of divorce to amend their Will, after which an ex-spouse will not be automatically excluded from inheriting in terms of a Will. If a testator/testatrix nominated their ex-spouse as an heir in their Will, gets divorced thereafter and passes away after this three-month period without amending their Will, the testator/testatrix’s ex-spouse will inherit from their ex-spouse’s estate and will not be disqualified. Such a testator/testatrix will therefore not be protected under the provisions of section 2B of the Wills Act.
3. Birth of Children, Additional Children or Adoption
If it is the intention of the testator/testatrix to nominate their children as heirs, it is advisable that additional children (if it is their intention) be included when updating their Will. This is to avoid any family conflict and costly litigation. The same goes for ensuring that a guardian is nominated for all minor children. Additional minor children will also affect provision for testamentary trusts. For example, a testamentary trust created for the benefit of “my child” may unintentionally exclude later siblings, thereby excluding them from essential protection, including protecting their inheritance from vesting in the Guardian Fund[3] until the age of majority.
4. Acquiring Additional Assets or Disposing of Assets
It is advisable to amend your Will when additional assets are acquired. Failure to do so will result in: a) the additional assets being included in the residue of the estate[4], which may be bequeathed to unintended heirs and b) if no provision was made for a residue, additional assets being dealt with in terms of Intestate Laws[5]. This will render the Will partially intestate which may, again, result in unintended heirs inheriting these assets.
Where assets have been sold during the lifetime of the deceased, these assets will no longer form part of the estate, rendering that clause in the Will ineffective and unenforceable.
Furthermore, with more South Africans turning to offshore property and digital assets such as cryptocurrency/digital wallets, Wills require specific clauses and instructions regarding storing private keys securely.[6]
5. Death of Beneficiaries or Executors
In terms of section 2C(2) of the Wills Act,[7] if an heir dies before the testator/testatrix the children of that deceased heir will inherit per stirpes. This means that the children of that deceased heir steps into that parent’s place and will receive proportionally[8] what their parent would have received– unless the Will indicates otherwise. This has the potential to benefit unintended heirs.
6. Estate Duty and Capital Gains Tax
Estate Duty thresholds and Capital Gains Tax are subject to change, and as a result, an outdated Will might not take current tax exemptions and thresholds into account. These changes may affect the liquidity of an estate and may potentially result in a higher tax burden on the estate, resulting in a lesser amount available for distribution to heirs.
Conclusion
An outdated Will is one of the most common causes of protracted estate administration and/or estate disputes. The Fiduciary Institute of Southern Africa (FISA) outlines the importance of reviewing your Will regularly and more so when significant changes occur during your lifetime[9], mitigating the risk of inadequate estate planning.
- [1] Act 88 of 1984.
- [2] Act 7 of 1953.
- [3] Assets bequeathed to minor children outside of a testamentary trust would vest in the Guardian Fund, as administered by the State, and only be released to the child upon reaching majority at age 18 (or earlier, if the child become emancipated).
- [4] The remainder of the estate. For example, a will may stipulate that a house will be inherited by X’s daughter, A, but that the residue of the estate, made up of any other assets remaining in the estate, will be inherited by X’s son, B.
- [5] Governed by the Intestate Succession Act 81 of 1987.
- [6] BVR Attorneys Inc. ‘Cryptocurrencies and Death: A South African Legal Perspective’ (2011) available at https://www.bvrbusinessrescue.co.za/cryptocurrencies-and-death-a-south-african-legal-perspective/ (accessed on 17 November 2025).
- [7] Act 7 of 1953.
- [8] If four siblings inherit per stirpes on behalf of their parent, they will each inherit 25% of their parent’s share of the deceased’s estate.
- [9] The Fiduciary Institute of Southern Africa “FISA Consumer Education – Wills’ available at https://www.fisa.net.za/wp-content/uploads/2013/09/FISA-Consumer-Education-Wills.pdf (accessed on 17 November 2025).
By Robyn Siljeur
Associate at Adriaans Attorneys
While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes and should not be construed as legal advice.
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