Trusts / Wills & Estates

Wills, Testators and Surviving Spouses

By 05/01/2012 July 20th, 2013 No Comments

Testators (and Testatrices) – draw wills, and where they are married, often leave the bulk of their estates to their surviving spouses. Such Testators also get divorced.

With the passing of time – the Testator remarries, and has either adopted children or has had children with the new spouse, and no amendments have been made to the existing will. On the death of the Testator, the previous spouse – who was married to the Testator at the time of the divorce, could inherit the entire estate to the detriment and prejudice of the current spouse and any children.

 If there has been no revocation of the earlier will (a subject which we will touch on in later articles) the second family of the Testator could suffer loss.

This situation occurs regularly enough to prompt the legislators to provide legislation that caters for this state of affairs and seeks to redress the possible unfairness.

The Wills Act, No. 7 of 1953, has reference and in its simplest terms – the original will stands. If the will leaves everything to the spouse at the time when the will was made, that spouse will inherit in terms of the conditions set out in that will.

This is subject to the proviso contained in section 2B of the Wills Act, that the spouse at the time of the divorce may not inherit anything in terms of the will – if the deceased dies within three months of the divorce (or annulment of the marriage.) After that period of three months, the will is taken to be the wish of the spouse, i.e. because nothing was done to amend the terms of the will within the three month period, the deceased actually intended that the spouse at the time the will was made was to inherit and it is then accepted that the Testator wished to benefit the former spouse.

In effect, therefore, section 2B provides that the will does not become invalid in its entirety but any bequests to the spouse of the testator expire because that spouse is presumed to have predeceased the testator provided the death of the Testator occurs within the three month period. If the testator dies after three months from the date of the divorce – then the will remains completely valid and that spouse will inherit because the presumption is that the deceased wished the will to stand.

The ramifications are serious. For example, the Testator and Testatrix are newly married, and have nothing. Their will provides that the surviving spouse receives the entire estate. The parties divorce. Then, the Testator or the Testatrix remarries and builds up a large estate and has children with a second spouse. If the original will has not been revoked the spouse at the time of the first will inherits – to the detriment and prejudice of the second family! An untenable and patently unfair situation.

This is why it is critically important to review the terms of a will. As previous articles have mentioned – Testators and Testatrices must review their wills regularly. Where any life changing events occur such as marriage, divorce, death of a child – birth of a child, the death or emigration of an executor or trustee (the list is endless) the written will must be reviewed. Where there is no life changing event, then, when income tax returns are filed – the will must be reviewed. Any will must be seen to properly accord with the wishes of the Testator or Testatrix, and, that it takes full and proper account of the wishes and the prevailing circumstances, and importamtly, fits in with any Estate Plan.

To fail to do this could mean possible hardship or prejudice

4th January 2012


Ian Mc Laren

Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens Attorneys September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.