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How divorce can impact your will

Your last wishes must be unambiguous.

INGÉ LAMPRECHT: Married couples often nominate each other as heirs, but what happens if a couple goes through a divorce without updating their wills, and one of them dies soon thereafter?

My name is Ingé Lamprecht, and to discuss wills and the consequences of divorce, I’m joined by the chairperson of the Fiduciary Institute of Southern Africa, Ronel Williams.

INGÉ LAMPRECHT: Ronel, is it common for married couples not to update their wills, even after a divorce is finalised?

RONEL WILLIAMS: Ingé, I wouldn’t say it is common for them not to do it, but unfortunately it happens more often than it should. We do definitely see that clients get busy with other things and I would assume when you are going through a divorce there are many other things on your mind and updating your will is probably going to be the last of those things. So it does unfortunately happen.

INGÉ LAMPRECHT: What happens if one of the parties dies, and the will still nominates the former spouse as an heir?

RONEL WILLIAMS: The Wills Act in South Africa governs how wills are executed and it contains a provision that deals specifically with the scenario where somebody dies after having been divorced. Section 2B essentially says where a testator dies within three months of his marriage having been dissolved by divorce then any will that he executed before that divorce will be interpreted as if the former spouse had died before the divorce. So what that essentially would mean is that the former spouse is regarded as having pre-deceased the testator, which means that that former spouse will not inherit in terms of the will unless – and that is an important proviso – the will actually specifies differently. So if the will makes it clear that the bequest will be valid regardless of a divorce, then that spouse will inherit if the testator dies within three months of the divorce. If it isn’t in the will like that, then the former spouse will not inherit.

INGÉ LAMPRECHT: What happens if the testator dies more than three months after the divorce or annulment?

RONEL WILLIAMS: Then effectively in terms of what the Wills Act says, it is then regarded as that the testator had three months’ opportunity to change his will. He didn’t do it, so it is an assumption that he didn’t want to update the will, so whatever the terms of the will are, that is going to remain. So the former spouse who was nominated as a beneficiary in terms of that will, will now be able to inherit everything that is in that will.

INGÉ LAMPRECHT: So let’s perhaps simplify this by way of an example, Ronel.

RONEL WILLIAMS: I am going to refer to John and Jane, just to make it easy. So let’s say John drafts a will and he says he leaves his entire estate to his wife, Jane. Happily married, everything is fine. Now they go through a divorce and let’s assume it is on the 1st of June 2017. He doesn’t update his will and on the 17th of August, he dies with that will that still nominates Jane as his only heir. Now if we apply Section 2B of the Wills Act, because he died within three months after the date of the divorce on the 1st of June, Jane is regarded as being deceased – as pre-deceasing him – which means that she is no longer capable of inheriting.

So then we have to look at the terms of the will to see what happens to that portion that Jane would have inherited. Now ideally John would have provided for a case like that and stipulate what would happen if Jane is not there. If he didn’t then it could well be that that portion that Jane would have inherited will now devolve in terms of the rules of intestate law. So that is if John dies on the 17th of August, which is less than three months after the divorce. If he now dies let’s say on the 17th of September, which is more than three months [after the divorce] then the assumption is because he didn’t change his will, he actually wanted Jane to inherit, despite the fact that they are now divorced and Jane will accordingly inherit whatever is left to her in terms of that will.

INGÉ LAMPRECHT: Ronel, are there cases where a testator goes through a divorce but still wants his or her former spouse to inherit?

RONEL WILLIAMS: Yes, I would suppose that that is probably going to be the minority of cases. I would guess that most people going through a divorce probably don’t want to continue benefitting each other, but I’m sure there certainly are cases like that. I have seen one or two where for whatever reason the parties decide to divorce they are still quite happy to benefit each other, maybe not to the entire extent that they did before but maybe there is still some let’s say a bequest of cash left to the former spouse. So it does happen and it needs to be specified in the will.

INGÉ LAMPRECHT: If the will remains unchanged after the divorce, there could be situations where it is not quite clear what the testator’s intentions were. How do you avoid such ambiguity when drafting a will?

RONEL WILLIAMS: It is very important – in the context of drafting a will – for all instances to be very clear and unambiguous. This is a very good example where it is really necessary to do so. So if we go back to the example of John and Jane: If he wanted Jane to still inherit despite the fact that they are divorced, the will really needs to state this. So an example would be I leave my entire estate to my spouse, Jane, and I direct that this bequest shall remain in force even if we are no longer married at the time of my death. That means that if they do get divorced without John updating his will, that bequest will still stand.

INGÉ LAMPRECHT: Ronel, would the three-month provision in the Wills Act only apply to a marriage that is regarded as a civil marriage, or to other life relationships as well?

RONEL WILLIAMS: Ingé, this is quite interesting because it can get quite technical. Our law regards many different types of relationships as either a marriage or similar to a marriage to the extent that certain benefits are extended to those relationships. Now if we look at the Wills Act itself and specifically then Section 2B, it refers to a marriage and that relates to a marriage as you mention a civil marriage (it was solemnised by a marriage officer as defined in the Marriage Act).

Now if we look at the other relationships that exist in our country and that are often in terms of law regarded as “acceptable” (from a legal point of view for extending benefits) we have civil unions, which are solemnised in terms of the Civil Union Act. Now that act specifically says that the legal consequences of a marriage (in other words a marriage solemnised in terms of the Marriage Act) those legal consequences also apply to a civil union. So it is very clear then that Section 2B of the Wills Act will also apply to civil unions that are dissolved by terms of a court order.

The other relationships that often happen are relationships or marriages in terms of customary law. Now we do have legislation that governs those relationships – the Recognition of Customary Marriages Act – and that act provides that a marriage in terms of Customary Law will be a valid marriage in terms of Customary Law and then also if it is in terms of Customary Law, it will also be recognised as a marriage for purposes of our law. So Section 2B will also apply to that.

The one relationship where Section 2B does not apply is where a marriage is entered into in terms of religious rites only and generally speaking in our country the main ones that we often refer to are marriages in terms of Muslim rites and marriages in terms of Hindu rites because they are still not by our law regarded as valid marriages from a blanket point of view (and I’m saying that because certain benefits are extended to those, but they are still not regarded as legal, valid marriages). So Section 2B of the Wills Act will not apply to those relationships, so it means that we need to look at it differently when a will was drafted than when we do where there is a civil marriage.

INGÉ LAMPRECHT: In summary Ronel, what do you think are the most important things couples should consider when they draft a will and decide to nominate each other as heirs?

RONEL WILLIAMS: The general advice whenever we deal with clients who want to do wills is to say to them that they must make 100% sure that their will remains up to date. In other words, the will must still reflect their current situation so that if anything changes in their life, they must revisit the will. Now in the context of married couples who get divorced, this is even more important because clearly their situation has changed – in all likelihood they would want the terms of their will to reflect that changed situation. So they really need to make a 100% sure that they update their will but then also importantly (and that is the general advice whenever a will is drafted) if you nominate anybody in your will to receive a benefit you must also consider what would happen if that person is either no longer in a position to accept it or in a case like this where the person – let’s say it is your spouse and you go through a divorce – so you should ideally nominate an alternative heir or you should indicate in your will, what will happen if the circumstances around that person have changed.

So it really is just to think further than just the immediate scenario and also then to make sure that when anything changes in your life to the extent that your circumstances are changed, that you also update or at least consider your will at that stage to see if you want to update it.

INGÉ LAMPRECHT: Thanks Ronel. That was the chairperson of the Fiduciary Institute of Southern Africa, Ronel Williams.

This podcast was sponsored by the Fiduciary Institute of Southern Africa (FISA).

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