Wallage v Williams-Ashman N O and Others

The appellant and the deceased were married in 2011. Shortly before the marriage, the deceased executed a will bequeathing her entire estate to the appellant. The marriage irretrievably broke down and the parties divorced on 24 October 2016. Less than three months later, on 8 December 2016, the deceased committed suicide. Section 2B of the Wills Act 7 of 1953 provides that where a person dies within three months of a divorce, a will executed before the divorce is implemented as if the former spouse had predeceased the testator, unless the will itself shows an intention to benefit the former spouse notwithstanding the divorce. Applying s 2B, the appellant was deemed to have predeceased the deceased, was disinherited by operation of law, and the estate devolved intestate upon the deceased’s parents. The appellant challenged the constitutional validity of s 2B.

The appeal was dismissed. The appellant was ordered to pay the costs of the third and fourth respondents, including the costs of counsel.

The case confirms the constitutional validity of section 2B of the Wills Act and clarifies that the legislature may presumptively disinherit a former spouse shortly after divorce without permitting extraneous evidence of intention. It reinforces certainty in testamentary succession and affirms that freedom of testation may be limited by statute for legitimate purposes without violating constitutional property rights.