Although many South Africans going through a divorce hope for a swift, clean break, a significant number neglect their estate planning, which can leave their entire estate to their former spouse. Charlize Byrne, an attorney at Van Deventer Dowlath & Marx Inc, cautioned that many people wrongly assume the Master of the High Court will automatically note their divorce, when in fact the Master only has regard to what is written in the will. A legally valid will remains binding until revoked or amended, and Section 2B of the Wills Act 7 of 1953 creates a short term safeguard for those adjusting to life after divorce, a protection that falls away once the three month statutory grace period ends.
Key Takeaways
- Three-month grace period: Section 2B of the Wills Act protects a former spouse from being excluded only if the testator dies within three months of the divorce decree, after which the will is executed exactly as written.
- The will overrides assumptions: The Master of the High Court does not automatically account for a divorce; only the wording of the will itself determines who inherits, so an outdated will naming a former spouse still stands.
- Freedom of testation is absolute: Courts, as shown in JW v Williams-Ashman, will enforce a testator’s written instructions even if the outcome seems unfair, making it essential to update a will promptly after divorce.
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What Section 2B Actually Means
Section 2B provides that, should a person pass away within three months of the date on which their divorce decree was granted, the law proceeds on the basis of a so called “statutory fiction” in which the former spouse is treated as though they had died before the deceased, purely for purposes of inheritance.
The practical effect of this is that the ex spouse will be excluded from inheriting, unless the will itself makes it clear that the testator, being the person who drew up and signed the will, intended for their former spouse to benefit regardless of the divorce having taken place.
Byrne further warned that the legislation refers specifically to a period of three months rather than a fixed number of ninety days, and for this reason working out the precise timeline is of critical importance.
Because three calendar months is not always the same number of days as ninety days, someone divorced at the end of a long month such as January could find their grace period ending on a different date than someone divorced in a short month such as February, so it is worth marking the exact expiry date on a calendar rather than relying on a rough estimate.
It is only once that three-month period has run its course that the temporary safeguard disappears entirely, at which point the will is carried out strictly in accordance with its written terms, regardless of the more recent divorce.
How the Timeline Plays Out
| Scenario | Outcome |
|---|---|
| Death occurs within three months of the divorce decree | Section 2B applies, and the former spouse is treated as if they died before the testator, so they are excluded from inheriting unless the will clearly states otherwise |
| Death occurs after the three-month grace period has expired | Section 2B no longer applies, and the will is executed exactly as written, meaning a former spouse named as heir will still inherit |
| Will is updated to formally exclude the former spouse | The new will governs the estate regardless of timing, removing any uncertainty around the three-month window |
The Case That Put Section 2B to the Test
Section 2B was put under judicial scrutiny in the Western Cape High Court matter of JW v Williams-Ashman NO and Others, which was decided in 2020.
In that matter, the testator died within three months of her divorce having been finalised, without ever having updated the will she had drawn up before she married, a will which named her husband as her sole heir.
Once the executor of the estate applied Section 2B in order to disinherit the former husband, he responded by challenging the constitutionality of the statute itself.
The court ultimately upheld Section 2B, finding it to be both rational and constitutional, and in doing so it protected the deceased’s estate during the grace period that followed her divorce.
The Constitutional Court has, in separate matters, repeatedly affirmed that testamentary freedom is a deeply entrenched value in South African law, which is part of why provisions like Section 2B are drafted as narrow, time limited exceptions rather than broad rewrites of a person’s wishes.
Even though Section 2B did offer protection in this particular instance, Byrne cautioned that the case still stands as a sobering warning to anyone who puts off updating their estate plan beyond the statutory deadline.
Had the deceased in this matter died after the three month grace period had already lapsed, her former husband would have inherited her entire estate in full.
Like a Gym Membership
Byrne explained that the outcome of the case rests on a foundational principle of South African law referred to as freedom of testation.
Courts are obliged to give effect to a testator’s recorded written instructions, and they are not permitted to alter or set aside a will simply because the outcome appears unfair in light of the fact that the marriage has since ended.
Byrne compared the habit of reviewing an estate plan to a gym membership, noting that it is the sort of task that people tell themselves they will get around to tomorrow, then next week, then next month, all while life continues to move quickly around them.
She added that taking the time to review a will ensures that it continues to reflect a person’s current wishes, rather than those belonging to a chapter of their life that has already come to a close, concluding that a former spouse ought to remain in the past rather than in the will.
Tips for Those Going Through a Divorce
Byrne offered a number of practical recommendations for South Africans who are in the process of divorcing, or who have recently divorced.
- Record the exact date on which the divorce decree was granted, so that the three month grace period can be monitored accurately.
- Execute an amendment or draw up an entirely new will immediately, formally revoking any benefit previously left to the former spouse.
- Review life insurance policies, retirement funds, and living annuities without delay, since these fall outside the scope of a will and must be updated directly with the relevant institutions.
A few further practical points worth adding to this list include the following:
- Notify your bank and any joint account holders of the change in marital status, since jointly held accounts and debit orders can otherwise remain linked to a former spouse.
- Update the nominated beneficiaries on medical aid schemes and funeral policies, as these are also typically governed by separate beneficiary nomination forms rather than by the will.
- Reconsider who has been appointed as executor or as a guardian for minor children in the will, since a former spouse may still be listed in either of these roles even after a divorce.
- Keep a certified copy of the divorce decree together with the updated will, so that the exact date of divorce can be proven quickly should the estate need to be wound up soon afterwards.
Why This Matters Beyond South Africa
Although Section 2B is a feature of South African law specifically, many other jurisdictions, including England and Wales and a number of Australian states, have similar “revocation on divorce” provisions built into their own wills legislation, which suggests that the temptation to delay updating a will after a relationship ends is a fairly universal human tendency rather than a uniquely South African one.
Ultimately, Byrne’s message is a straightforward one: a valid will is a powerful legal document that the courts will enforce to the letter, and the three month grace period created by Section 2B should be treated as a limited safety net rather than a substitute for taking prompt, deliberate action to update one’s estate plan after a divorce.
Conclusion
The law places the responsibility squarely on the individual, since neither the Master of the High Court nor the courts will second guess what is written in a will simply because a marriage has ended. Section 2B offers a limited three month buffer, but as the JW v Williams-Ashman case shows, that protection is temporary and cannot be relied upon indefinitely. The most reliable safeguard remains prompt action: recording the date of the divorce decree, drawing up a new or amended will without delay, and updating beneficiary nominations on policies and funds that fall outside the will entirely. In the end, a will should reflect the life someone is living now, not the one they have already left behind.
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