Wallage v Williams-Ashman N O and Others

Jakob Marius Wallage married Nicola Jean Wallage on 11 June 2011. Days before the marriage, Nicola executed a will bequeathing her entire estate to the appellant. In August 2016, the parties agreed to divorce and signed a consent paper recording the division of assets. A final decree of divorce was granted on 24 October 2016. On 8 December 2016, less than 3 months after the divorce, Nicola committed suicide. Section 2B of the Wills Act 7 of 1953 provides that if a person dies within three months after divorce, a will executed before the divorce must be implemented as if the former spouse had died before the dissolution, unless it appears from the will that the testatrix intended to benefit the former spouse notwithstanding the divorce. This meant the appellant was disinherited by operation of law, and Nicola's parents inherited her estate intestate.

• Whether section 2B of the Wills Act 7 of 1953 constitutes an arbitrary deprivation of property in violation of section 25(1) of the Constitution
• Whether the appellant was deprived of property (his prospective inheritance) within the meaning of section 25 of the Constitution
• Whether the evidentiary limitation in section 2B (requiring the testatrix's intention to be determined only from the will itself) amounts to arbitrary deprivation
• Whether section 2B infringes the right of access to courts under section 34 of the Constitution
• Whether section 2B is contrary to public policy

The appeal was dismissed. The appellant was ordered to pay the costs of the third and fourth respondents (the parents) in the appeal, including costs consequent upon the employment of counsel. No costs order was made in favor of the Master (second respondent).

Section 2B of the Wills Act 7 of 1953 does not constitute an arbitrary deprivation of property in violation of section 25(1) of the Constitution. The provision has sufficient reason for any deprivation it effects: it serves the legitimate purpose of protecting testators who may not realize their will continues to benefit a former spouse after divorce, and it gives paramountcy to actual testamentary intention. The limitation requiring that the testatrix's intention to benefit a former spouse notwithstanding divorce must 'appear from the will' is justified because: (1) a duly executed will is by law the authoritative expression of testamentary intention; (2) this limitation fosters certainty and curtails fraud when the testatrix can no longer speak; and (3) it reflects a foundational principle of testamentary succession law. This limitation is also not procedurally unfair under section 25(1), as it is a justified stipulation as to proof of intention. Section 2B therefore does not violate section 25(1) or section 34 of the Constitution.

The court expressly declined to decide whether a prospective personal right to claim an inheritance that might never accrue constitutes 'property' within the meaning of section 25 of the Constitution, noting this is an issue of 'no small difficulty.' Unterhalter AJA cautioned about exercising care in expanding the meaning of property in section 25 to include every kind of personal right, noting important distinctions between real rights and personal rights. The court noted that submissions regarding differential impact of section 2B on persons married under different marital regimes (such as Islamic law) could not be entertained as they were not raised in the founding affidavit and formed no part of the case pleaded. The court distinguished costs as between the Master (representing public interest, no costs order) and the parents (private dispute between competing heirs, costs to follow the result).

This case is significant for clarifying the scope of section 25(1) of the Constitution in the context of testamentary succession. It establishes that statutory intervention to disinherit former spouses within a limited period after divorce does not constitute arbitrary deprivation of property. The judgment reinforces the foundational principle that a properly executed will is the authoritative and binding expression of a testatrix's intentions, and that limiting evidence to the will itself (rather than allowing extraneous evidence) is justified to foster certainty and prevent fraud. It clarifies the distinction between sufficient reason for deprivation and procedural fairness under section 25(1), finding that justified evidentiary limitations do not constitute procedural unfairness. The case is also notable for its cautious approach to expanding the meaning of 'property' under section 25, though it assumed rather than decided that a prospective inheritance constitutes property. It demonstrates judicial deference to legislative policy choices that balance freedom of testation with protection of testators in the aftermath of divorce.