fbpx

SHOULD YOU AMEND YOUR WILL AFTER DIVORCE?

A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessarily fall away after divorce. According to the Wills Act 7 of 1953, unless expressly stated otherwise, a bequest to your divorced spouse will be deemed to have been revoked should you die within three months of your divorce. However, if the testator failed to amend his will within the three-month window period, the revocation rule falls away and the divorced spouse will benefit as directed in the will. It is best to set an annual recurring diary which will remind you to relook at your will and amend to suit your current circumstances.

The freedom of testation implies that a testator may revoke or alter his will at any time before his death.

An amendment to a will can be made while executing a will or after the date of execution of the will. You cannot alter an existing original will by deleting portions with correction fluid, crossing words out, adding in other words or sentences or attaching other sheets of paper which do not comply with the requirements prescribed for a valid will. It is always advised that you should prepare a new will and destroy the old one. However, if you have minor changes and would rather keep the original will, the alternative is to use a codicil to change your will.

A codicil is simply a document that starts with a reference to your original will, and then explains the changes, usually by setting out replacement paragraphs for the provisions that you wish to change.

SO: if amending your original will you must ensure that you have done the following:

  • The amendment must be in writing. The term ‘written’ includes by hand, typed or printed.
  • The signature of the testator must appear at the end of the amended will or codicil.
  • The testator’s signature must be made in the presence of two or more competent witnesses.
  • The witnesses must attest and sign the amended will or codicil in the presence of the testator and of each other. If the will consists of more than one page, each page other than the page on which it ends must be signed by the testator anywhere on the page.

If you have made/intend to make any amendments to your will and you have any doubts as to whether you have followed the prescribed process to ensure it is valid, contact our attorneys who specialises in Wills and Estate Planning.

Contributor: Hayley Pillay
Email: hayley@pgpslaw.co.za