Quick answer
Avoid treating divorce or remarriage as an automatic rewrite of the old will. The most serious mistakes are counting from separation instead of the final dissolution order, relying indefinitely on section 2B's limited three-month rule, changing names by hand, ignoring the new ownership position, forgetting appointments and nominations outside the will, using interested witnesses, destroying the old original too early, or failing to protect the signed replacement.
Key takeaways
- Use the final divorce or annulment date, not the separation or settlement-negotiation date, for section 2B analysis.
- Do not wait three months before starting the review.
- Remap ownership after the divorce settlement and under the new marriage before naming gifts.
- Review executor, trustee, guardian and external beneficiary nominations separately from inheritance clauses.
- Keep the existing original until the replacement is validly signed, identified and stored.
How to use this guide
Review the complete will and surrounding estate plan promptly. State the intended treatment of the former spouse, current spouse, children and dependants in deliberate language; verify what the testator now owns; coordinate policies, retirement interests, trusts and businesses; and execute a clean replacement with the Wills Act formalities.
Mistake 1: Assuming divorce revoked the whole will
Section 2B does not automatically revoke the entire pre-divorce will. Where the testator dies within three months after a court dissolves or annuls the marriage, it generally treats the former spouse as having died before the dissolution for implementation of that will, unless the will shows an intention to benefit the former spouse notwithstanding the dissolution.
The rule is limited. It is not a permanent deletion mechanism and it does not rewrite every reference, office or contingency. Read the actual will with the final order and obtain advice instead of summarising the result as “the divorce cancelled it.”
Mistake 2: Using the wrong date
Separation, mediation, a settlement signature, moving out or issuing summons is not necessarily the dissolution event in section 2B. Record the date on which the competent court granted the final divorce or annulment order and retain the order.
Do not calculate a protective period from memory. If the order's status, date or wording is uncertain, verify it before relying on any legal consequence.
Mistake 3: Treating the three months as a waiting period
The statutory rule gives limited protection where death occurs within three months; it is not advice to delay the update. The Supreme Court of Appeal explained that the provision affords an opportunity to revise the will. If the person survives the period without changing the document, a disposition to the former spouse may operate as written.
Begin the review promptly. Health, travel, remarriage, capacity or asset-transfer facts can make waiting especially risky.
Mistake 4: Crossing out names or replacing pages
Handwritten deletions, inserted names, unsigned schedules, replacement pages and emailed wishes do not safely update a signed will. Amendments and codicils must comply with the applicable formalities. A partial change can also leave the residue, substitutes and appointments inconsistent.
Prepare a controlled clean version or properly executed codicil after advice. Never ask a witness or Commissioner of Oaths to repair a defective signing later.
Mistake 5: Gifting the pre-divorce asset map
The old will may describe property that transferred under the settlement, remains jointly owned, is subject to a pending transfer, or no longer belongs to the testator. Remarriage can introduce a different matrimonial-property position. A will cannot give away an asset merely because the testator once owned or used it.
Build a current ownership schedule from deeds, account and business records, the divorce order, settlement and antenuptial contract. Identify uncertainty rather than drafting around an assumption.
Mistake 6: Updating beneficiaries but not fiduciary roles
An old document may nominate the former spouse or former in-law as executor, trustee or another responsible person. Those appointments are separate from gifts. Review availability, independence, willingness, remuneration, security language and substitutes for every office.
Also distinguish testamentary nominations from living parental responsibilities and rights. A will cannot simply remove a living parent's legal position or resolve a current family-law dispute.
Mistake 7: Forgetting arrangements outside the will
Policies, retirement and employment death benefits, trusts, account nominations and business agreements may use their own forms and decision rules. Updating the will alone can leave an old nomination or contractual result in place.
Create a separate register showing each provider or instrument, current nominee, control rule, submission date and acknowledgement. Do not assume the same percentages should be copied into every arrangement.
Mistake 8: Using an interested person in the signing
The Wills Act can disqualify a person involved in writing or witnessing the will, and that person's spouse, from receiving a benefit or appointment, subject to statutory processes and exceptions. Do not design the signing around an exception.
Use independent competent witnesses who are not beneficiaries, executors, trustees, guardians or spouses of those people. If the testator cannot sign normally, arrange the correct alternative route and Commissioner of Oaths involvement in advance.
Mistake 9: Ignoring the current spouse and dependants
Excluding a former spouse or adding a new spouse does not answer every maintenance, matrimonial-property, dependency or contractual question. Record current support obligations, minor or vulnerable beneficiaries and claims that could affect the estate.
Do not promise that a clause eliminates a person's separate legal claim. The adviser should test the intended distribution against the verified relationship and obligation facts.
Mistake 10: Letting another person control the instructions
After family change, a new spouse, adult child or adviser may arrive with strong views. The testator must give independent instructions and understand the consequences. Disclose illness, medication, isolation, pressure, language or communication needs before drafting.
Where influence or capacity may later be disputed, an independent professional process and appropriate contemporaneous evidence are more useful than a family member scripting the meeting.
Mistake 11: Destroying the old original prematurely
Do not destroy, mark or detach pages from the existing original before the replacement has been validly completed and its revocation effect confirmed. If the new signing fails, premature destruction may create a separate evidential dispute.
After execution, record the date, page count, witnesses, custody location and any duplicate originals. Keep revoked material under the drafter's controlled advice so an old copy is not mistaken for the operative document.
Mistake 12: Failing to close the loop
A replacement will is only one part of the update. Complete provider nominations, property transfers required by the divorce order, trust or business changes, liquidity review and original-storage communication. Tell the nominated person where the original can be retrieved without circulating private clauses.
Set another review trigger for birth, death, material asset change, relocation, business restructuring or a further marriage or divorce. The estate plan should keep pace with the legal and factual position.
This article gives general South African information. Section 2B, ownership, claims and validity must be applied to the actual will, order and family facts.
Additional FAQ
Should I destroy the old original before the replacement will is signed?
No. Keep the existing original secure until the intended replacement has been reviewed, properly executed and placed in confirmed custody. Destroying the only operative will while a draft is incomplete can create an avoidable intestacy or proof dispute.
FAQs
Does divorce permanently cancel a gift to a former spouse?
No. Section 2B creates a limited rule where death occurs within three months after the marriage is dissolved, subject to the will's wording. If the person survives beyond that period without changing the will, the former-spouse benefit may operate as written.
Can I cross out my former spouse's name in the old will?
That is unsafe. Amendments and codicils must comply with will formalities. A clean reviewed replacement, properly executed and stored, usually creates a clearer record.
Does remarriage automatically revoke my earlier will?
Do not assume that it does. Review the existing will, matrimonial-property position, beneficiaries, executor and trustee roles, policies, retirement interests, trusts and business arrangements, then execute the intended replacement correctly.
Should I destroy the old original before the replacement will is signed?
No. Keep the existing original secure until the intended replacement has been reviewed, properly executed and placed in confirmed custody. Destroying the only operative will while a draft is incomplete can create an avoidable intestacy or proof dispute.
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Legal note
This article is general legal information for South African readers. It is not legal advice. Speak to a qualified legal professional about your specific facts before taking action.