J W v Williams-Ashman NO and Others (16108/19) [2020] ZAWCHC 27; 2020 (4) SA 567 (WCC) (28 April 2020)

J W v Williams-Ashman NO and Others (16108/19) [2020] ZAWCHC 27; 2020 (4) SA 567 (WCC) (28 April 2020)

Section 2B of the Wills Act 7 of 1953 is not inconsistent with sections 25(1) or 34 of the Constitution. The provision serves a legitimate and compelling social purpose by preventing former spouses from benefiting under a will made prior to divorce unless the testator expressly intended otherwise. The deprivation of property it effects is not arbitrary, as it is limited in scope—applying only within three months of divorce—and is consistent with international practice. The provision does not oust the court's jurisdiction or discretion in matters of interpretation, nor does it infringe the right of access to court, as disputes regarding the application or interpretation of section 2B can...

Citation
[2020] ZAWCHC 27
Parties
Applicant: J W; Respondent: David Howard Williams-Ashman N.O.; Respondent: Master of the High Court, Gauteng Division Johannesburg; Respondent: J C; Respondent: I N F; Respondent: The Speaker of the National Assembly; Respondent: Chairperson of the National Council of Provinces; Respondent: Minister of Justice & Correctional Services
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
28 April 2020
Case Number
16108/19
Procedural Posture
Constitutional Application / High Court Judgment on Constitutional Validity of Statutory Provision
Outcome
Application dismissed. Section 2B of the Wills Act is not unconstitutional. Each party to bear their own costs, except for the interlocutory application to strike out, where costs are awarded against the applicant.
Judges
Sher
Legal Topics
Freedom of Testation, Arbitrary Deprivation of Property, Wills Act Section 2b, Right of Access to Court, Public Policy Inheritance, Intestate Succession
Constitutional Law Family and Children Freedom of Testation Arbitrary Deprivation of Property Wills Act Section 2b Right of Access to Court Public Policy Inheritance Intestate Succession

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Parties

J W

Applicant

David Howard Williams-Ashman N.O.

Respondent

Master of the High Court, Gauteng Division Johannesburg

Respondent

J C

Respondent

I N F

Respondent

The Speaker of the National Assembly

Respondent

Chairperson of the National Council of Provinces

Respondent

Minister of Justice & Correctional Services

Respondent

Procedural Posture

Constitutional Application / High Court Judgment on Constitutional Validity of Statutory Provision

Legal Issues

  1. 1 Whether section 2B of the Wills Act 7 of 1953 is inconsistent with sections 25(1) and 34 of the Constitution.
  2. 2 Whether section 2B arbitrarily deprives a testator or beneficiary of property rights.
  3. 3 Whether section 2B unjustifiably limits the right of access to court or is contrary to public policy.

Ratio Decidendi

Section 2B of the Wills Act 7 of 1953 is not inconsistent with sections 25(1) or 34 of the Constitution. The provision serves a legitimate and compelling social purpose by preventing former spouses from benefiting under a will made prior to divorce unless the testator expressly intended otherwise. The deprivation of property it effects is not arbitrary, as it is limited in scope—applying only within three months of divorce—and is consistent with international practice. The provision does not oust the court's jurisdiction or discretion in matters of interpretation, nor does it infringe the right of access to court, as disputes regarding the application or interpretation of section 2B can...

Court Disposition

Application dismissed. Section 2B of the Wills Act is not unconstitutional. Each party to bear their own costs, except for the interlocutory application to strike out, where costs are awarded against the applicant.

Orders

  • The interlocutory application by third and fourth respondents in terms of rule 6(15) is upheld with costs.
  • Paragraphs 22-24 and 31-46 (inclusive) of the founding affidavit, together with annexures ‘FA2’ to ‘FA8’, are struck from the record.