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Consider the following scenario:

A gentleman marries a woman in his youth and, while young and in love, concludes a last will and testament in which he leaves his entire estate to his new bride. The glowing fire of young love between the pair soon dims to but an ember, a shadow of what they had envisioned their future would be, and divorce soon follows.

All hope is not lost, however, as the gentlemen meets a woman who brings new vigour to his life! They marry, have two beautiful children, and together build a lasting and fulfilling marriage together. Nearly 20 years after the divorce from his first wife the gentleman suffers an untimely demise, leaving his wife and two children to continue without him.

As the preparations for the laying to rest of the gentlemen begin, it becomes apparent that the deceased had not reviewed his last will and testament since concluding the first one, while married to his ex-wife so many years ago. There can be no question that at the time of his death it was never his intention to deprive his wife and children, whom he loved immeasurably, of any inheritance in order to benefit his ex-wife

But what does the law have to say on the matter?

Section 2B of the Law of Succession Amendment Act (No. 43 of 1992) provides that a divorce does have an effect on a testator’s will, but only for a limited time and only in respect of certain beneficiaries.

If a person does not change their will within three months after the divorce, any bequest made to the former spouse in terms of the last will and testament remains valid, and the former spouse will inherit. In other words, if your will stipulates that your ex-spouse inherits your entire estate on your death and you do not change your will within three months of the divorce, that provision will take effect and your ex-spouse will inherit your entire estate, despite your divorce.

Applied to the scenario set out above, and unless the ex-spouse voluntarily elects to forgo the inheritance, the deceased’s wife and sons have very limited recourse available to them and the law will enforce the most recent valid last will and testament of a deceased, even if the circumstantial evidence is overwhelmingly contrary to the content of the document.

It is, therefore, imperative to be aware of and up to date on the consequences of your estate planning decisions. Newly divorced individuals, as well as those currently involved in divorce proceedings, are encouraged to ensure that the last will and testament are an accurate reflection of their final wishes.

Contact VST Attorneys today for trusted advice and a custom last will and testament.

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1 Comment

AJ Truter
AJ Truter
Jun 20, 2022

A very relevant issue. An annual review of your last will and testament is highly recommended.

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