Does Divorce Automatically Change Your Will In South Africa
After a divorce, there is often a long list of practical matters to resolve. Reviewing your will can easily slip down that list, especially when you have already dealt with a settlement agreement and the division of your assets.
Divorce does not automatically cancel your entire will or permanently remove your former spouse as a beneficiary. South African law provides a limited three-month rule, but relying on it without updating your will can leave an inheritance arrangement you no longer intend. Wills Act 7 of 1953, section 2B
Understanding how this rule works can help you make informed decisions about your estate after divorce.
What Is the Three-Month Rule
Section 2B applies when someone dies within three months after a competent court dissolves their marriage by divorce or annulment, and their will was executed before that dissolution.
In those circumstances, the will is generally implemented as though the former spouse had died before the marriage ended. There is an exception: if the will shows an intention to benefit the former spouse despite the dissolution, that intention takes precedence.
The rule therefore affects how an existing will operates in particular circumstances. It does not write a replacement will or select new beneficiaries for you.
Can Your Former Spouse Inherit After Three Months
Yes. If you die after the three-month period and your unchanged will still benefits your former spouse, that person may inherit under its terms.
The Supreme Court of Appeal explained this distinction in Wallage v Williams-Ashman NO and Others. Outside the three-month period, the unchanged will is given effect as an expression of the deceased’s wishes. The court also confirmed the exception for an intention, appearing from the will, to benefit a former spouse despite the divorce. Wallage v Williams-Ashman NO and Others, paragraphs 19–20
Treat the period as a reason to arrange a review promptly. It is not a recommendation to wait three months before taking action.
What If You Are Separated But Still Married
Moving into separate homes or starting divorce proceedings does not trigger section 2B. Its wording requires a divorce or annulment by a competent court.
If your relationship has ended but your divorce is still pending, review your will with your attorney rather than assuming that separation has changed its effect.
Who Inherits If Your Former Spouse Is Excluded
There is no single answer for every estate.
The remaining wording of the will matters, including any substitute beneficiaries. In some circumstances, intestate succession may become relevant. In Wallage, the former spouse was the sole heir, and the application of section 2B resulted in the estate passing through intestate succession. That outcome should not be assumed for every will.
A review should therefore consider the whole document, including what happens if a nominated beneficiary cannot inherit.
Can You Simply Cross Out Your Former Spouse’s Name
An informal alteration can create uncertainty about whether your wishes have been validly recorded. Amendments must comply with legal formalities. A codicil, which supplements or amends an existing will, also has formal requirements.
Obtain advice on whether a properly executed amendment or a new will is appropriate. Keep the signed original safely and ensure that a trusted person knows where it is held. Master of the High Court guidance on wills
What About Your Children
If you have minor children, discuss who would manage their inheritance and whether a testamentary trust is appropriate. Also distinguish financial planning from guardianship. A will does not simply remove the other parent’s existing rights.
Section 27 permits a parent who is the sole guardian to appoint a fit and proper guardian in a will. The appointment takes effect after death and acceptance. Your attorney should assess your existing parental rights and court orders. Children’s Act, section 27
Does Updating Your Will Change Retirement Fund Nominations
Review retirement fund nominations separately. For benefits governed by section 37C of the Pension Funds Act, the fund board must consider qualifying dependants and nominees. It is not bound by your will or nomination form. Updating one document therefore does not settle every benefit arrangement. Financial Services Tribunal decision on death benefits
What Should You Prepare For A Will Review
Legal Aid South Africa identifies divorce documents, beneficiary details, assets and liabilities as useful preparation for drafting a will. Will drafting guidance
Before your appointment, gather:
- Your current will and any codicils.
- Your divorce order and settlement agreement.
- Details of your intended beneficiaries and alternatives.
- Information about your assets, debts and dependants.
- Questions about any executor or trustee nominations you wish to reconsider.
You may want to retain a provision for your former spouse, change it or remove it. Explain your intentions clearly so that the drafting can address them.
For other events that may prompt a review, read our article on when to update your will in South Africa.
When to update your will in South Africa
How Can You Make Your Instructions Clear
Before the consultation, think beyond removing a name. Write down who you want to benefit, what each person should receive, and who should inherit if your first choice dies before you. Identify any belongings with particular personal significance and explain your priorities for dependants.
For example, you may want one child to receive a specific asset while another receives money. Ask whether that arrangement remains workable if the asset is sold or the estate has limited cash. Discuss these possibilities with your attorney before signing. Clear instructions give the drafting process a practical starting point and help identify questions that need individual advice. Keep a copy of your consultation notes.
Reviewing your will gives you an opportunity to consider your current responsibilities and record your wishes clearly.
Burnett Attorneys & Notaries assists with wills and estate planning. Contact our team to arrange a consultation about your circumstances.