Caitlin Moses | Candidate Attorney | Gillan & Veldhuizen Inc | mail me |

Divorce, while undoubtedly difficult, is a common experience that many of us go through.

Amid the emotional turmoil, divorce brings a seemingly endless checklist of tasks. Yet, one crucial undertaking is often overlooked: updating your will. This oversight, however, can lead to unexpected consequences, especially regarding inheritance rights.

When to update a will after divorce

Section 2B of the Wills Act allows a grace period to update your will after divorce. However, this grace period is limited to three months. Therefore, you should not wait too long to amend your estate plan.

If a will is not updated within three months of the divorce date, the ex-spouse may still inherit under its terms. This is true despite their legal separation from the testator.

During the three-month post-divorce period, the ex-spouse is treated as if they had predeceased the testator. Thus, they are not entitled to assets or property intended for them. However, this exclusion does not affect the validity of the rest of the will. It only prevents an ex-spouse from inheriting during this specific three-month period.

What happens if the will is not updated

It is important to understand that this three-month period serves as a brief hiatus. It allows you time to update your will after a divorce. If the testator dies within three months from the divorce date, without updating a pre-divorce will, the original will is executed. In this case, the ex-spouse is treated as if they had died before the testator. This prevents the ex-spouse from inheriting.

However, if the will was made after the marriage was dissolved, or if the testator dies more than three months post-divorce, the protection of section 2B ends. In this scenario, the ex-spouse will inherit under the original will’s terms. This rule ensures that individuals have time to revise their wills after a divorce.

The best course of action is to promptly review and update your will after filing for divorce. It’s also important to do so after any major life changes. This helps avoid unintended outcomes and ensures your intentions are clearly reflected in your last will and testament.

Related FAQs: Updating a will after divorce

Q: Why is it important for updating a will after divorce in South Africa?

A: It’s important to update a will after a divorce in South Africa. Divorce automatically revokes any provisions made for a former spouse. This ensures your assets are distributed according to your current wishes. It prevents your previous spouse from benefiting, despite the dissolution.

Q: What happens to my beneficiaries after a divorce?

A: After a divorce, any provisions made for your former spouse in your will are revoked. You should amend your will to reflect new beneficiaries. This ensures that your financial security and legacy are protected. It guarantees that your assets are distributed according to your wishes.

Q: Do I need to appoint a new executor after my divorce?

A: Yes, if your former spouse was named as the executor in your will, you should appoint a new executor to manage your estate after your passing. This ensures that your estate is handled by someone who aligns with your current intentions.

Q: Can my divorce order affect my life insurance policy?

A: Yes, the terms of the divorce order can affect your life insurance policy. If your former spouse was named as a beneficiary, you may need to change this designation to ensure that your life insurance benefits go to the intended beneficiaries after your death.

Q: What steps should be taken when updating a will after divorce?

A: To amend your will after a divorce, you should consult with a legal professional to ensure compliance with South African law. You can create a new will or add a codicil that reflects the changes in beneficiaries and executors.

Q: Is it necessary to update my will if my spouse had died before the divorce?

A: Yes, it’s important to update your will even if your spouse had died before the divorce. The dissolution of your marriage could impact how your assets are distributed and what was previously intended for your former spouse may need to be reconsidered.

Q: How does the date of such dissolution affect my will?

A: The date your divorce is finalised is critical because it determines when the automatic revocation of your former spouse as a beneficiary takes effect. This means that if you die within a certain period after the dissolution, your former spouse may still be considered a beneficiary unless you have amended your will.

Q: Can I still leave something to my former spouse in my will after divorce?

A: While South African law automatically revokes provisions for your former spouse after divorce, you can choose to leave assets to them if you explicitly state this in your new will or codicil. It’s important to clearly outline your intentions to avoid confusion.

Q: What should I consider regarding my will if I am going through a divorce?

A: If you are going through a divorce, it’s important to understand how the divorce can affect your will. You should consider amending your will as soon as possible to reflect your new circumstances, ensuring that your legacy and intended beneficiaries are protected.