Louw NO v Kock and Another (14270/2015) [2016] ZAWCHC 165; 2017 (3) SA 62 (WCC) (31 October 2016)

Louw NO v Kock and Another (14270/2015) [2016] ZAWCHC 165; 2017 (3) SA 62 (WCC) (31 October 2016)

Section 2B of the Wills Act is clear and unambiguous: a previous spouse is disqualified from inheriting under a will executed before divorce if the testator dies within three months of the divorce, unless the will itself demonstrates an intention to benefit the previous spouse notwithstanding the dissolution. The will in question nominates the 'longest living' spouse as sole heir but does not expressly provide for inheritance after divorce. The court found that the will does not indicate an intention to benefit the plaintiff after divorce, nor does Section 2B permit extrinsic evidence to rebut the statutory presumption. The plaintiff's claim is therefore incompetent in law and excluded by...

Citation
[2016] ZAWCHC 165
Parties
Applicant: Maria Magrietha Louw N.O.; Respondent: Anna Catharina Kock; Respondent: The Master of the High Court, Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
31 October 2016
Case Number
14270/2015
Procedural Posture
Civil Application / Application to Dismiss Claim After Failure to Amend Particulars of Claim Following Exception
Outcome
Plaintiff's claim dismissed with costs.
Judges
Y S Meer
Legal Topics
Wills Act Interpretation, Effect of Divorce on Will, Statutory Disqualification of Spouse, Freedom of Testation
Family and Children Land and Property Wills Act Interpretation Effect of Divorce on Will Statutory Disqualification of Spouse Freedom of Testation

Case Brief

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Parties

Maria Magrietha Louw N.O.

Applicant

Anna Catharina Kock

Respondent

The Master of the High Court, Cape Town

Respondent

Procedural Posture

Civil Application / Application to Dismiss Claim After Failure to Amend Particulars of Claim Following Exception

Legal Issues

  1. 1 Whether Section 2B of the Wills Act disqualifies the plaintiff from inheriting as a previous spouse within three months of divorce.
  2. 2 Whether the will demonstrates an intention by the deceased to benefit the plaintiff notwithstanding the divorce.
  3. 3 Whether extrinsic evidence may be admitted to rebut the statutory presumption created by Section 2B.

Ratio Decidendi

Section 2B of the Wills Act is clear and unambiguous: a previous spouse is disqualified from inheriting under a will executed before divorce if the testator dies within three months of the divorce, unless the will itself demonstrates an intention to benefit the previous spouse notwithstanding the dissolution. The will in question nominates the 'longest living' spouse as sole heir but does not expressly provide for inheritance after divorce. The court found that the will does not indicate an intention to benefit the plaintiff after divorce, nor does Section 2B permit extrinsic evidence to rebut the statutory presumption. The plaintiff's claim is therefore incompetent in law and excluded by...

Court Disposition

Plaintiff's claim dismissed with costs.

Orders

  • The claim of the First Respondent/Plaintiff against the First Defendant/Applicant under case no. 14270/2015 is dismissed.
  • The First Respondent/Plaintiff shall pay the costs, including the costs of the exception and this application, on the scale as between party and party.