31 May 2017 by Dispute Resolution Alert

A deceased estate goes to the dogs

Mr K was married to Mrs K for 29 years. They signed a joint will leaving everything to each other, depending on who died first. Mr K also stipulated that if Mrs K died first, on his death the estate would go to his father. If Mr K senior was by that stage also dead – everything went to the SPCA. Simple.

But Mrs K met someone else and fell in love. In the next three months Mr and Mrs K were divorced, the ex-Mrs K remarried, Mr K passed away – of natural causes – and on the night he died the ex-Mrs K and her new husband moved into Mr K’s house. The ex-Mrs K then lodged Mr K’s will with the Master of the High Court describing herself as Mr K’s surviving spouse.

Then things got even more complicated when the Master referred the ex-Mrs K to a very important little provision in the Wills Act.

Section 2B of the Wills Act effectively says that the death of Mr K within three months after the divorce means that the ex-Mrs K is deemed to be have predeceased Mr K and is thus unable to inherit, unless it appears from the will itself that Mr K intended to benefit his ex-wife. The Wills Act assumes that you didn’t get around to changing your will in those three months between your divorce and your death and assumes also that you would have changed your will to exclude your ex. The three months is a “grace period” and failure to alter a will during that time will leave the will – and any bequests to the ex-spouse – intact, should the testator pass away after the three-month grace period.

The ex-Mrs K took the Master to the Western Cape Division of the High Court in 2016, insisting that she should inherit because there was no evidence from which it could be deduced that it was Mr K’s intention that she should not inherit. The ex-Mrs K did not challenge the meaning of s2B but said simply that the will did make it clear that Mr K intended to benefit her and she asked the court to interpret the will in her favour. Mr K’s executor opposed the ex-Mrs K in court.

There are rules pertaining to the interpretation of wills. As the court put it, the “cardinal” rule is that the court must try to ascertain, from the language used, the true wishes of the testator and consider the will as a whole.

The court found Mr K’s will to be clear. It did not call for interpretation. But the ex-Mrs K’s counsel argued that the application of s2B was subject to a finding as to what the intention of the testator was, that Mr K’s intention was clearly that the longest living should inherit upon the death of the first dying and that the ex-Mrs K could inherit. If Mr K had not wanted her to inherit, he would either have expressly said so in the will or changed his will the day after the divorce. It was argued that s2B could not be enforced if the court found that Mr K intended the ex-Mrs K to inherit the estate.

The court made the crucial point that the ex-Mrs K’s argument would give Mr K the power to override a provision in an Act of Parliament. The court held that neither the period of a marriage nor the harsh consequences of the timing of death would impact on the statutory disqualification imposed by s2B. The court found the reverse of the ex-Mrs K’s argument to be true. Had Mr K intended the ex-Mrs K to inherit after divorce he would have explicitly stated so in his will or made a new will after the divorce indicating that to be his wish.

The consequences of not having a will and, indeed, not updating it regularly can be quite severe. Our experts are able to assist you in crafting a document that meets your needs. Be sure to update your will regularly and seek guidance on the presumptions created by the Wills Act. To encourage people to execute wills, the Law Society of South Africa hosts National Wills Week annually and this year it will be held from 11 to 15 September 2017. During this week participating attorneys draft basic wills free of charge.

Oh yes, the SPCA did inherit the entire estate of Mr K.

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