On 28 April 2020 Sher J delivered a magisterial 40-page judgment in the High Court of the Western Cape in the matter between JW (Appellant) and Williams-Ashman & others (Respondents), case 16108/19. In issue was section 2B of the Wills Act, 1953, a relatively little-used and little known section because of its limited application.
Section 2B provides that: “If any person dies within three months after his marriage was dissolved by a divorce or an 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”.
As the court observed, elderly people tend not to get divorced, and they are more likely to die relatively soon after each other than young and middle-aged couples, who in turn are more likely to get divorced. This would explain the obscurity of section 2B. In its 1991 report, the SA Law Commission had recommended the insertion of section 2B into the Act after extensive research into the position in a number of other countries. The rationale is the acknowledgment that in so inevitably stressful and sometimes traumatic an experience as divorce, redrafting your will is often the last thing on your mind. The Commission recommended, however, that three months was long enough time for persons newly divorced to take stock of their new situation and take remedial action. The result was the introduction of section 2B in 1992.
The appellant’s spouse, NW, died less than three months after their divorce had been finalised. She had signed a will shortly before the couple’s marriage, referring to JW as “my husband”. The court found that this premature description did not invalidate the will. In the will she bequeathed her estate to her husband. No children were born of the union and NW had no children of her own. Her executor applied section 2B, which had the effect of disinheriting JW and devolving NW’s estate upon her parents in terms of the Intestate Succession Act, 1987. JW appealed against this decision on broadly two grounds. In response to each of the grounds, as mentioned below, the court devoted considerable attention.
Section 25(1) of the Constitution provides that no one may be deprived of property except in terms of a law of general application, and no law may permit the arbitrary deprivation of property. In 73 closely crafted paragraphs, too long to consider in this brief summary, the court found that section 2B does not deprive beneficiaries of their right to benefit under a will, partly because they had no right but only a spes. This part of the judgment deserves an article of its own.
Section 34 of the Constitution provides that everyone has the right to have a dispute which 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. JW contended that section 2B offends against section 34 of the Constitution because in the first place it “seeks to exclude the Court’s ‘general oversight function’ (sic). Secondly, because it ousts the ‘general discretion’ which the Court has in terms of the Wills Act (such as that which it has to condone non-compliance with the formalities required for a will or the revocation of a will), thereby preventing it from accepting evidence which a former spouse may be able to put forward of a testator spouse’s intent, which might be recorded in another document, or which may have been expressed in terms of an oral agreement which is ‘publicly accepted as true’ (sic). Thirdly, the applicant contends that the provision is in conflict with section 34 as it ‘deletes’ (sic) the constitutional right which the applicant has to seek judicial redress in circumstances where he is able to provide ‘direct’ evidence of a testator spouse’s testamentary intentions, and instead directs that the Court must operate under a ‘false fiction’ that a former spouse has predeceased a testator spouse, which is contrary to public policy”. In a mere 33 paragraphs, which also deserve their own article, the court demolished JW’s second constitutional challenge.
In the result, the court found that section 2B “serves a legitimate and compelling social purpose and the deprivation which it affects when it applies is not arbitrary in terms of s 25(1), and there is sufficient reason for it. It is also not procedurally unfair. In addition, the terms of s 2B do not constitute a limitation of the applicant’s right of access to a Court, in breach of s 34. Consequently, the application falls to be dismissed”.
Readers would do well to take the time to read and digest this judgment as an example of judicial interpretation at its best.
