Deceased Estates


Posted 12 September 2023

Theo Mbense (Candidate Attorney)

Although it is likely that a testator would not wish for a former spouse to inherit their accumulated wealth and worldly possessions once they have divorced, especially if the testator has remarried, it is common that divorcees often fail to amend or revoke their benefits to former spouses once they have divorced. This is usually as a result of negligence or ignorance. The vexed question is then, how should one deal with such benefits if the parties dissolve their marriage but the testator dies without effectively amending or revoking their will?

Section 2B of the Wills Act protects newly divorced spouses in that it provides for the disinheritance of a former spouse should the testator die within a 3-month period from the dissolution of the marriage. Put differently, if a testator dies within 3 months of becoming divorced, and he executed a valid will prior to the dissolution of the marriage, the surviving former spouse will be deemed to be predeceased and thus unable to inherit.

An interesting question is whether this statutory disqualification is flexible and exempt from contrary instructions in the testator’s will. In this regard Section 2B expressly stipulates that a former spouse will not lose their inheritance if “… it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage”. The disinheritance of the previous spouse will therefore not apply if it appears from the testator’s will that he intended to benefit his previous spouse despite the dissolution of the marriage.

Section 2B serves a legitimate social purpose in that it provides divorcees with a 3 months grace period during which they can draft new wills that take proper account of their altered circumstances and take remedial action. This section also limits the scope for disputes after the death of the testator. The rationale behind this section acknowledges that redrafting a will is often the last thing on a person’s mind after a stressful and sometimes traumatic divorce.

Although the effects of a divorce can be emotionally devastating a failure to update your will after the dissolution of a marriage has the potential to create even more serious and undesirable consequences.