My ex-wife and I were married out of community of property on 10 July 2015. Shortly thereafter we had our individual Wills drawn up where we bequeathed our entire estates to the survivor of us. She filed for a divorce in January 2020 and the divorce order was granted on 10 May 2020. On 01 August 2020, my ex-wife succumbed to Covid-19. Do I still inherit her estate despite us being divorced?

Section 2B of the Wills Act, No. 7 of 1953 provides “If any person dies within three months after his marriage was dissolved by a divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that 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 his marriage.”

Section 2B allows a person a “window period” of three months from date of divorce to revoke or amend his last will and testament if he bequeathed any of his assets to his ex-spouse, and after the divorce he no longer wishes for her to inherit from his will. In the event that he fails to revoke or amend his will within three month from date of divorce, his ex-spouse will inherit in terms of his will, despite the divorce.

It is important to note that Section 2B only applies where the testator dies within three months from the date of divorce. If the testator lives beyond this period and does not change his will to elect new heirs, his ex-spouse will then inherit in terms of his will as it will be deemed that by not changing his will, his intentions were that his ex-spouse inherit from his will.

In the recent case of JW v Williams-Ashman NO and Others 2020 (4) SA 567 (WCC), section 2B was challenged on constitutional grounds. In this case the Applicant’s ex-wife committed suicide within three months from date of divorce. Section 2B became applicable wherein the deceased’s estate was to devolve upon her intestate heirs, thereby disinheriting the Applicant. Since she had no children, her parents stood to inherit her entire estate.

The Applicant sought an order declaring section 2B to be inconsistent with section 25(1) and section 34 of the Constitution of the Republic of South Africa. The court held that section 2B does not violate sections 25(1) and section 34 of the Constitution and the application was dismissed.

To conclude, where an ex-spouse dies within three months from date of divorce and her will was not amended or revoked, section 2B will come into application. Her estate will devolve as per intestate succession, thus disinheriting her ex-spouse.