Update a Will After Divorce or Remarriage in South Africa

Key takeaways

• Use the date of the final divorce or annulment order for the section 2B review; separation is not the same event.
• Do not wait for the three-month period to expire before updating the will.
• Map current ownership after the divorce settlement and under the new marriage before drafting gifts.
• Review beneficiary nominations, trusts, jointly held assets and business arrangements separately from the will.

1. Confirm the legal event and the current will

Start with dates and documents. Collect the final divorce or annulment order, any settlement or consent paper made an order of court, the new marriage certificate where applicable, the antenuptial contract or other record of the matrimonial-property regime, and every signed will or codicil.

Record:

• when the old will was executed;
• when the marriage was dissolved by the court;
• whether the will expressly addresses divorce or continued benefit for a former spouse;
• whether a later will or codicil exists;
• whether remarriage has already occurred or is planned; and
• where the latest original signed will is kept.

Living apart, negotiating a settlement or signing a consent paper is not by itself the section 2B trigger. The statutory language concerns a marriage dissolved by divorce or annulment by a competent court. If the divorce is not final, a new will can still be prepared for the present position, but it should be reviewed again when the court order and asset transfers are final.

Do not destroy the only original will before a valid replacement has been executed. First identify the current document and any revocation wording, then manage the old original as the adviser directs after the new will is complete.

2. Understand the three-month divorce rule

Section 2B does not simply revoke the old will. It changes how a pre-divorce will is implemented if death occurs within the three months after divorce or annulment. During that limited period, the former spouse is generally treated as having died before the dissolution for purposes of implementing the will, unless the will itself shows that the testator intended the former spouse to benefit notwithstanding the dissolution.

The Supreme Court of Appeal confirmed the protective purpose and limited operation of section 2B in W v Williams-Ashman. If the testator does not die during the three-month period and the will still benefits the former spouse, the will as written is treated as expressing the testator's intention. Extraneous statements about what the testator supposedly wanted are not a substitute for changing the will.

This creates several drafting questions:

• Does a gift to the former spouse fall into the residue or pass to an alternate beneficiary if the former spouse is treated as predeceased?
• Is the former spouse also nominated as executor, trustee or guardian?
• Does the will contain a definition of spouse or a divorce clause?
• Is there a joint or mutual will whose effect needs separate analysis?
• Are any benefits conditional on survivorship or another event?

Do not rely on a generic answer where the wording is unusual. The full signed will must be read.

3. Choose the service from the actual complexity

The person who drafts the will does not have to be appointed as executor. Ask separately about drafting scope, document custody, executor nomination, executor remuneration, trust administration and later reviews.

4. Rebuild the asset and ownership map

Divorce and remarriage can change ownership, control and obligations. List assets by current legal owner rather than by who uses them or paid for them historically.

Include:

• immovable property and pending transfers under the divorce order;
• bank, investment and loan accounts;
• vehicles and valuable movable property;
• business shares, member's interests and shareholder or buy-and-sell arrangements;
• trust interests, trustee roles and loans to or from a trust;
• intellectual property and digital assets where material;
• life policies, retirement-fund interests and named beneficiary arrangements;
• foreign assets, citizenships, residence and foreign wills; and
• guarantees, maintenance obligations, debts and expected estate costs.

Mark whether each item is owned personally, jointly, by a company or by a trust. A will disposes of the estate governed by it; it does not automatically rewrite a trust deed, policy, retirement-fund rule, shareholder agreement, divorce order or ownership register. Ask the relevant provider or adviser what instrument controls each benefit and coordinate the records.

For remarriage, confirm the matrimonial-property system and the extent of any joint estate, accrual or separate estate. The will should be based on what can form part of the estate at death, not an assumed gross household balance sheet.

5. Rewrite the beneficiary plan deliberately

Create a beneficiary table with full legal names or unambiguous descriptions, relationship, intended gift, alternate beneficiary and the result if that person dies first. Review:

• every gift to the former spouse;
• gifts to a new spouse or partner;
• children from earlier and current relationships;
• stepchildren and other dependants;
• future children or descendants;
• specific assets promised in a divorce settlement or another agreement;
• the residue after debts, costs and specific gifts; and
• substitute beneficiaries if a gift cannot take effect.

Avoid relying on conversational labels such as “my wife”, “my husband”, “our children” or “the family” unless the drafting makes the intended class and date of determination clear. Do not assume that a new spouse, stepchild, former spouse or partner will have the result you expect under an old clause.

If the plan intentionally continues a benefit for a former spouse, record that instruction clearly with independent advice. If the aim is to exclude someone who may have a maintenance, matrimonial-property, contractual or other claim, do not assume exclusion from the will eliminates the claim. The Maintenance of Surviving Spouses Act provides for a surviving spouse's maintenance claim in certain circumstances, and the exact new-marriage position should be reviewed against the current facts.

6. Review executor, trustee and guardian nominations

An old will may still nominate a former spouse, former in-law or now unsuitable adviser as executor or trustee. Review each office separately from gifts.

For an executor, consider availability, independence, administration ability, required security and remuneration. Name a suitable alternate. The Master, not the will alone, makes the formal appointment after death.

For a testamentary trust, identify the beneficiaries, vesting or termination age, trustee powers, trustee independence, replacement process and anticipated administration cost. Do not create a trust merely because minor beneficiaries exist; compare it with the Guardian's Fund and other lawful structures for the actual estate.

For minor children, distinguish a testamentary nomination from existing parental responsibilities and rights. A will is not a mechanism to remove the rights of a living parent. Where guardianship, relocation, contact or safety is disputed, coordinate the will with family-law advice and record the child's care information separately.

7. Review arrangements outside the will

Ask for a separate confirmation of every beneficiary nomination or contract-based death benefit. The relevant provider, fund, trust or agreement may apply its own legal and contractual decision process. Review at least:

• life and funeral policies;
• retirement and employment death benefits;
• investment or account nominations where available;
• trust beneficiary and trustee records;
• business succession and buy-and-sell agreements;
• partnership or shareholder agreements; and
• foreign beneficiary designations.

Do not copy the will's percentages mechanically into every nomination. The ownership, tax, liquidity and dependency considerations may differ. Record the form used, submission date, provider acknowledgement and next review date.

8. Prepare the drafting instructions

Give the drafter an indexed pack containing:

1. identity and contact details;
2. the current original or complete copy of every will and codicil;
3. the final divorce or annulment order and incorporated settlement;
4. the new marriage certificate and antenuptial contract where applicable;
5. the asset-and-liability schedule with current ownership;
6. business, trust and foreign-asset records relevant to succession;
7. the beneficiary table and substitute choices;
8. executor, trustee and guardian nominations with alternates;
9. current policy and benefit nominations; and
10. any urgent health, capacity, travel or execution constraint.

State the intended result in plain language before reviewing clauses. If an asset description, ownership fact or beneficiary identity is uncertain, mark it for verification rather than allowing a guess into the will.

9. Execute the replacement will correctly

The Department of Justice's current public guidance summarises the Wills Act formalities. The will must be in writing. The testator signs at the end in the presence of two or more competent witnesses, and the witnesses attest and sign in the presence of the testator and each other. Where the will has more than one page, the testator also signs the other pages. Additional certification rules apply if another person signs for the testator or the testator signs by mark.

A codicil or amendment must comply with will formalities. Crossing out a former spouse's name, writing a new beneficiary in the margin, adding an unsigned page or emailing revised wishes is not a reliable way to update the will.

Choose witnesses who are independent and are not intended beneficiaries, executors, trustees or guardians. Section 4A can disqualify people involved in writing or witnessing the will, and their spouses, from receiving benefits, subject to statutory provisions and possible court or Master processes. Use independent witnesses rather than creating a dispute for the estate to solve.

If capacity, influence or family conflict may later be questioned, use an independent lawyer, document the testator's own instructions and consider appropriate contemporaneous professional evidence. Do not film or obtain medical material without advice about relevance, consent and privacy.

10. Store the original and close the loop

Keep the original signed will in a secure, accessible place and tell the executor or trusted person where it is held. Record who has custody and whether more than one separately executed original exists. Keep unsigned drafts clearly marked as drafts.

After signing:

• confirm revocation and handling of earlier originals with the drafter;
• update provider nominations and obtain acknowledgements;
• complete any divorce-order property transfer still outstanding;
• align trust and business documents through the appropriate advisers;
• prepare a liquidity review for debts, costs and intended gifts; and
• schedule another review after a birth, death, marriage, divorce, material asset change, relocation or business transaction.

The estate plan is complete only when the signed will and the surrounding ownership and nomination records point in the same direction.

Common mistakes

• Believing that divorce permanently removed a former spouse from the old will.
• Counting three months from separation or settlement negotiation rather than the court dissolution date.
• Remarrying without checking the old will, matrimonial-property position and beneficiary nominations.
• Gifting an asset that was transferred to the former spouse or is still subject to the divorce order.
• Treating trust, policy, retirement-fund or business benefits as if the will alone controls them.
• Leaving the former spouse in an executor or trustee role without reviewing the appointment.
• Using a beneficiary, executor, trustee or their spouse as a witness.
• Making handwritten changes without re-executing a compliant will or codicil.
• Destroying the old original before the replacement will is validly signed.
• Updating the will but not telling anyone where the original is stored.

When to obtain help promptly

Arrange a review promptly when the divorce order was granted less than three months ago, the old will materially benefits or appoints the former spouse, remarriage is imminent, the new matrimonial-property regime is uncertain, divorce-order transfers remain incomplete, or the plan involves minor children, dependency, a trust, a business, foreign assets or material tax and liquidity questions.

Act quickly where health or capacity is deteriorating. A will can only be made while the testator has the required capacity, and a court application after death is not a substitute for careful, compliant execution during life.

Next step

Use the Wills and Estates hub to identify the service area, the will glossary for the core document, and the will-drafting service for the approved service route. The will-drafting checklist can help assemble the review pack. These routes provide general preparation support and do not determine the correct clauses or legal outcome.

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