The applicant (J) and N were married in 2011, out of community of property with inclusion of the accrual. After their marriage came under stress in 2015, a final decree of divorce was issued on 24 October 2016, incorporating a consent paper about the division of their assets. N died on 8 December 2016. She executed a will four days before the marriage in 2011 in which she bequeathed the full residue of the estate to “my husband” (the applicant J) and nominated the first respondent (W) as executor of her estate.
Section 2B of the Wills Act, 1953 (the Act), provides:
“Effect of divorce or annulment of marriage on will.—If any person dies within three months after his marriage was dissolved by a divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage.”
Because N died within the three month period envisaged by this provision, J could no longer inherit from her estate. As a result N’s parents would inherit the residue of her estate under the rules of intestate succession as she left no descendants.
J applied to the Western Cape High Court for an order declaring that the section is inconsistent with the Constitution in that it conflicts with section 25(1), and that it offends the provisions of section 34.
Section 25(1) provides:
“Property. – (1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.”
Section 34 provides:
“Access to courts. – Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”
J’s argument was that section 2B of the Act arbitrarily denied N the right to bequeath her estate as she clearly wished to do and was therefore inconsistent with section 25(1). He based this argument on his allegation that the provisions of section 2B are quite unknown to the general population, as well as on an email N sent him on 18 October 2016 in which she asked whether their agreement to keep their wills the same and let each other inherit in case of death of any of them. J did not respond to this email.
J’s argument that section 2B offended section 34 of the Constitution was based on three pillars, firstly that the court’s “general oversight function” was excluded, secondly that it also removes the court’s discretion to accept a will based on evidence as to the intention of the testator (as is the case in sec 2(3)), and thirdly because it “deletes” the applicant’s right to seek judicial redress where he can prove the testator’s intention.
The court (Sher J) dealt with the argument that section 2B is inconsistent with section 25(1) by looking at the history of section 2B and its equivalents in other countries. The court also did a thorough analysis of freedom of testation and the limits of this freedom. The court held that the test for the constitutionality of section 2B rested more on the proportionality of the result of the provision (the higher test) than mere rationality. Taking into consideration that it can safely be accepted that the vast majority of divorcees would not want to keep on benefiting their ex-spouses, the court came to the conclusion that the result of the provision is proportional to the situation it aims to address and is therefore not unconstitutional. The court also took into consideration that section 2B complies with the requirement of being a law of general application, as well as the normal rules for the interpretation of a will. It regarded as extremely important the accepted principle in our law of succession that the intention of the testator must be gleaned from the wording of the will and that the relevant intention is as it existed at the time of execution of the will.
The court rejected the argument that the court’s “general oversight function” is excluded by section 2B, and held that it was just a deeming provision which created a certain result. Nothing in the section prevents any party to approach the court about the proper interpretation of the will or the existence or not of an indication of intention to benefit the ex-spouse in any event despite the divorce. With regard to the applicant’s “general discretion” argument, the court held that neither the Act nor the law of succession gives the court a discretion to override the intention of the testator as expressed in the words of the will. The right to seek judicial redress is not taken away by the provision.
The application was dismissed.
Estate planners and will drafters should always keep the provisions of section 2B in mind and remind any client who is getting divorced of these provisions.