Divorce and updating your will
Louw NO v Kock and another 2017 (3) SA 62 (WCC)
A recent court case, Louw NO v Kock and another 2017 (3) SA 62 (WCC), gives guidance on the interpretation of section 2B of the Wills Act. That section provides that, if any person dies within three months after his marriage was dissolved by a divorce order, and that person executed a will before the date of such dissolution, the will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of the marriage.
In 2004 the first respondent and her previous spouse executed a joint will in which they each nominated the survivor of them as sole and universal heir. They divorced on 17 October 2014 and the previous spouse died within three months after the divorce on 7 January 2015. The Master refused to give effect to the relevant clause of the will on the ground that section 2B of the Wills Act prevented the first respondent from inheriting. The first respondent claimed that she was entitled to inherit under the will as no other person was nominated as heir to the deceased, and because it appeared that the deceased did not intend to benefit any other person upon his death.
The court held that a surviving former spouse can only inherit if it appears from the will that the deceased intended her to inherit notwithstanding the dissolution of the marriage. In this instance there was no such intention – the will simply provided for the longest living to be the sole heir of the first dying. The Court held that, if the deceased intended the first respondent to inherit after divorce, the will would have explicitly stated so or he would have made a new will indicating as such. The first respondent’s claim was accordingly dismissed.