W v Williams-Ashman N O and Others [2023] ZASCA 44
The Supreme Court of Appeals (SCA) dismissed an appeal by a divorced husband who attacked the provisions of section 2B of the Wills Act, 7 of 1953 of the grounds that it infringed the right to property under section 25 of the Constitution, 1996. The Western Cape High Court (WCHC) ruled in 2020 that the provision did not infringe the right to property nor did it deny access to the courts, a right guaranteed under section 34 of the Constitution. Click here for our summary of the judgement of the WCHC.
In the SCA the appellant argued that the provisions of section 2B deprived him of his right to inherit from his erstwhile spouse in conflict with what her real intention was, just because she died within the three month period after divorce as envisaged by section 2B. The appellant urged the court to take extraneous evidence into consideration and argued that the provision that the testatrix who died within three months after the divorce is deemed to have intended to disinherit the divorced spouse is arbitrary and with no rational basis.
The court (Unterhalter AJA, with Saldulker, Mbatha and Molefe JJA and Kathree-Setiloane AJA concurring) held that the provision has a rational purpose as it can safely be assumed that divorcees would not want to carry on benefiting their ex-spouses and that the fact that the deceased testatrix did not give any indication in her will that she wanted to continue to benefit her divorced spouse is the only indication of her real intention that can be considered. There are no reasons to deviate from the settled legal principle that the will of a deceased is the ultimate expression of such a deceased’s intention with regard to succession. The appeal was dismissed with costs.