Divorce and your Will.

Published date: November 2015
Author: Liezl Steenkamp

Requirements of a valid will

The drawing up of a legally binding will require the following conditions to be met:-

  1. Any person 16 years and older can draw up a legally binding will, subject to the fact that they have to be mentally equipped to understand the impact of his/her actions;
  2. The will needs to be signed by legally capable witnesses;
  3. No witness to a will may be younger than the age of 14;
  4. In the event of the testator NOT being able to sign, he/she is legally allowed to sign his/her name by way of a mark (this imposes certain procedural requirements to ensure the validity of the will in question, namely that the commissioner of oaths need to attach a certificate confirming that the will was signed in his presence and he has satisfied himself to the identity of the testator)

Who should you nominate as your Executor?

You as testator can choose anyone to be the executor of your estate. Due to the fact that your spouse has first-hand knowledge of your estate, it is always advisable to nominate your spouse as the executor of your estate. Should you however foresee any dispute/conflict between the beneficiaries regarding the division of your estate it is advisable to appoint an independent executor.

Divorce and your will…the consequences?

When we get married, none of us plan on getting a divorce, but it happens…a lot.

So the best way to deal with this is to prepare legally for all significant eventualitise.

In the event of death after divorce:

Within 3 months:

Should you get a divorce, the law gives you a “grace” period of 3 months to change your will. In the unfortunate event of you dying within 3 months of your divorce, the law will see it as if you had the full intention of changing your will and your ex-spouse is thus excluded from benefitting from your estate.

Your estate will thus be administrated as if you “deleted” your ex-spouse from your will.

After 3 Months:

In the event of the 3 month ‘grace’ period expiring, and you have not yet changed your will, the law will regard it as if you had no intention of changing your will and your ex-spouse will benefit in accordance with your existing will.

Thus, it is essential to change your will within the 3 month grace period to prevent your ex-spouse from benefitting.

Will changing the benefactor of an insurance policy in your will, change the benefactor on your life insurance?

The simple answer is NO!

People seem to have this notion that if you change the benefactor of your life insurance policy in your will, that the life insurance company will automatically pay the benefactor as stated in your will. This notion is ridiculous as this is a contract between the life insurance company and the insurer and cannot be change unilaterally by the testator in his will.

The life insurance will thus be paid out to the benefactor as stated in the life insurance policy, regardless of the provisions as contained in the will of the testator.

For more information contact Wilkins attorneys on :
011 781 0821 or judy@wilkinsattorneys.co.za