The effects of Divorce on a Will
“Some people don’t realize what they have until it’s gone.” — Author Unknown
Repeat after me – a change in your marital status does not affect the terms of a valid Will.
As the old adage goes, you don’t realize what you have until its gone, and the last thing you want is for your ex-spouse to reap the full benefits of the proceeds of your Will when you’re gone.
Often in the turbulence of a divorce or the joy of a new child or grandchild, updating your Will tends to fall by the wayside, so, remember, a change in your marital status does not affect the terms of a valid Will.
It is therefore crucial that you review your Will when your life changes. All persons that you wish to inherit from your estate must be explicitly mentioned in your Will.
The Wills Act (“the Act”), however, excludes an ex-spouse from inheriting if certain requirements are met. Section 2B of the Act states that if the testator dies within three months of getting divorced, there is a presumption that it was not his/her intention to bequeath assets to his/her ex-spouse. Thus, the ex-spouse will not be entitled to inherit from the estate. However, if such Will has not been amended after the three-month period, the plain terms of the Will are enforceable, and the ex-spouse will inherit as if he/she were still married to the deceased.
It is also important to note that subsequent spouses, children and/or grandchildren will not be entitled to inherit unless the Will specifically identifies them. However, in the unfortunate circumstance that the desired changes are not given effect to, there is relief available. A spouse, for example, may rely on proprietary rights afforded from their marriage, the scope of which will be determined by their matrimonial property system (whether married in community of property or out of community of property, with or without accrual). A child may have a maintenance claim against their parent.
Considering the above, it is clearly worth your time to reassess your Will, especially when intimate relationships have changed, and your family has grown. To affect such an amendment is a straightforward process. Section 2(1)(b) of the Act provides that any change to one’s Will must be identified by the signature of the testator and two witnesses in the presence of a Commissioner of Oaths, who will also attend to the certification of the Will. So do not hesitate to contact your lawyer for assistance in this regard.
Jean Meltzer has a BA Law and postgraduate LLB from Stellenbosch University, which she completed in 2019. Jean’s expertise is in family law, notably wills and deceased estates, divorce, child, and family law. She has a keen interest in alternative dispute resolution coupled with and including mediation, and general High and Magistrates Court litigation.