It is very essential for spouses to keep their wills updated after their status or there has been any developments during and after the subsistence of their marriage.

In South Africa, the legislation which governs wills is the Wills Act 7 of 1953 (hereinafter referred to as “the Act”). When parties are married and they both have wills during the subsistence of their marriage, should it be the case that they go through a divorce, it is very essential that they revisit their wills in order to make the necessary amendments should they wish to do so.

Section 2B of the Act provides that:

if a person dies within 3 months after they were divorced or their marriage was annulled, any will which they executed prior to such divorce or annulment must be given effect to as if their former spouse had died before such dissolution, unless it appears from the will that they intended their spouse to benefit notwithstanding it.

The above mentioned section might be a bit complex to understand for lay people, therefore an example will be made to that effect. Let’s assume Mr. Spenzer is married to Mrs Spenzer and the first mentioned has a will which makes provision for the latter mentioned to inherit. Both parties are going through a divorce and same is finalized on the 25^th of March 2021. Should it happen that Mr. Spenzer dies within 3 months after the date of the divorce being finalised and he did not amend his will otherwise, Mrs Spenzer will NOT inherit as it will be assumed that Mrs Spenzer died before Mr Spenzer did, even though in reality Mrs Spenzer will still be alive. However, should it happen that Mr Spenzer dies AFTER the 3 months period has lapsed, Mrs. Spenzer will indeed inherit as per Mr. Spenzer’s will.

The above stated simply means that the law gives a person a period of 3 months to amend his/her will after divorce and failure to do so will mean that the will remains as it was before the divorce.

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.

After all, the most important aspect to take into consideration is the terms stipulated in the will.