Why should you update your will after divorce?

Did you know that in 1992, the Wills Act was amended substantially but many people do not know about this Act’s most important provisions? For example, in terms of Section 2B of the Wills Act if a person executes a Will, gets divorced, and then dies within three months of getting divorced, his Will will be implemented as if his former spouse had died before the divorce.  The only exception to this “three month rule” is where it is clearly stated in his Will that a person intended to benefit his former spouse despite the divorce.

A married person usually leaves benefits to his spouse in his Will and provides that if the spouse dies first, those benefits will devolve upon their children born of the marriage.   In accordance with Section 2B, for the first three months after the divorce, the deceased person’s estate would be distributed to his children as alternate heirs. If no provision is made for an alternate heir to the spouse, then the distribution of the estate will be dealt with according to the Intestate Succession Act, which in broad terms provides that the deceased person’s next of kin (children, parents and siblings) will become beneficiaries of the deceased person’s estate. 

If a divorced person dies more than three months after his divorce and has not updated his Will (which nominates his now former spouse as heir), the former spouse will receive those benefits even though the parties are no longer married!  

It is therefore essential that anyone contemplating or actually going through a divorce obtains the best possible legal advice – not only about the divorce itself but also about ensuring his (or her) Will is updated removing the former (or soon to be former) spouse as the principal heir of his (or her) estate.

Consider a Testamentary Trust in your Will

If you want to update your Will following your divorce and you have children under the age of eighteen, you may want to consider setting up a Testamentary Trust in your Will and bequeathing your estate to the Testamentary Trust rather than directly to your minor children.  This would avoid the situation where your estate is handed to your former spouse to administer on behalf of your children as their legal guardian after your death.  Creating a Testamentary Trust allows you to nominate Trustees who will act in the best interests of your children in administering the Trust assets.  You will then have peace of mind that your children are being well cared for when you are no longer here to do so yourself.

This advice applies to anyone experiencing a life-changing event – be it a divorce, death in the family or on a happier note, the birth of a child.  At Gunstons, we have a team of Attorneys who be able to assist you every step of the way.