The constitutionality of section 2B of the wills Act 7 of 1953

Abstract

The evolution of South African succession law has been shaped significantly by changing social conditions, particularly the increasing number of divorces, which revealed a gap in our law regarding post-divorce succession. To address this gap, section 2B of the Wills Act 7 of 1953 was enacted. In essence, this provision provides that if a person dies within three months after a divorce, a will executed before the divorce is treated as if the former spouse predeceased the testator, unless the will itself clearly indicates an intention to benefit the former spouse despite the divorce. The constitutionality of section 2B of the Wills Act 7 of 1953 was challenged once before the High Court, in JW v Williams-Ashman NO and Others 2020 4 SA 567 (WCC), a decision that was appealed to the Supreme Court of Appeal in W v Williams-Ashman and Others 2023 4 SA 44 (SCA). Both courts ultimately found the provision to be constitutional. This study provides a more comprehensive analysis of the constitutionality of section 2B of the Wills Act 7 of 1953 than that conducted in the mentioned judgments. In examining the constitutionality of section 2B of the Wills Act 7 of 1953, the rights of both parties were examined. Specifically, the testator's right to freedom of testation, as well as the former spouse's rights, namely the right to not have property arbitrarily deprived in terms of section 25 of the Constitution and the right to access to justice protected under section 34 of the Constitution. After analysing the provision through established principles of law of succession, together with judicially developed principles relating to the constitutionally protected rights, this study concludes that section 2B of the Wills Act withstands constitutional scrutiny and forms a coherent part of South African succession law.