My late father's ex-wife is trying to claim from his estate; his will can't be executed without their divorce settlement. What do we do?

The long answer

According to Susandra Van Wyk Attorneys, in order to register the dead's estate, the Master's Office will need certified copies of the death certificate, divorce decree, and settlement agreement if the deceased was divorced at the time of his passing. These records are required to confirm the date of divorce and the death certificate.

The reason for this is that if a person dies within three months of a divorce, Section 2B of the Wills Act of 1953 will treat the surviving ex-spouse as predeceased – i.e. as having already died – and so she will not inherit if the deceased ex-spouse has not changed his will. In other words, Section 2B gives a window period of three months after the divorce for a divorced person to change their will. If the divorced person does not change their will within three months after the divorce, the will stands as it is. 

According to Kloppers Inc., a person has three months from the date of the divorce to change his will if he left any assets to his ex-spouse and then decided he no longer wanted her to inherit from it. Despite the divorce, his ex-spouse will inherit according to his will if he doesn't cancel or change it within three months.

If your father changed his will within three months of the divorce to disinherit his ex-wife, she could not inherit. So the Master of the High Court needs that divorce settlement to see if she has a claim on your father’s estate or not.

Cape Town Lawyer says that the following is a common clause included in a divorce settlement agreement to bind the estate to pay maintenance: “The Plaintiff’s estate shall be bound in respect of any obligations upon him in terms of this Agreement which may be unfulfilled at his death.” 

If he did change his will to disinherit her, she could still submit a claim for maintenance if she could reasonably prove that she could not support herself. 

Additionally, according to Susandra Van Wyk Attorneys, a dependent child under the age of 18 or a child whom the deceased financially supported may submit a maintenance claim against the deceased estate if the bequest to the ex-spouse results in the substantial disinheritance of the dependent child.

The designated beneficiaries in the Will will only receive what remains after the creditors have been paid and any established maintenance claims have been settled.

As far as the missing divorce settlement papers are concerned, the person nominated in the will as executor and appointed as such by the Master of the High Court to wind up the deceased estate would have the right to locate the divorce papers.

The High Court in which the divorce was finalised is legally required to keep a copy of the divorce papers and records. The court Registrar will file all the documents and minutes of the court proceedings under the case number. These records can be accessed by the divorcing couple or by their legal representatives.

Although the law doesn’t require the divorce attorney to keep a copy of the divorce decree and divorce settlement, it is generally thought to be good practice for the attorney to keep copies, as a client may well require further advice or assistance. As in this case.

Benatars clarifies the difference between a divorce settlement and a divorce decree: a divorce decree is essentially a synopsis of your divorce settlement and will outline all the details of what the court determined during your divorce proceedings, including property division, spousal maintenance, child support, custody, visitation, joint estate division (if applicable), and all other pertinent information. It is signed and stamped by the court where the divorce was finalised and acts as evidence that your divorce was finalised in a South African High Court.

The first page of the divorce decree, which has been stamped and signed by the High Court where it was issued, is typically required if you are asked to provide it. The divorce decree and full settlement may be necessary in certain situations, referring to the entire agreement that you and your former spouse signed and that was approved by the law. 

I would imagine that the whole document might be required for the will.

So, the executor or your late father’s ex-wife could contact the Registrar of the High Court where the divorce was finalised and ask for a certified copy. 

The ex-wife would need to bring her ID to confirm her identity during the application process.

She could also ask her attorney to make a legal application to the High Court for a copy.  In either case, the following would be needed, says Benaters:

• The divorce case number,

• The name of the court where the divorce was finalised,

• Date (day, month and year) of the divorce, and

• Names and ID numbers of the plaintiff and defendant. (The plaintiff being the one who initiates the divorce and the defendant being the other.)

Even if she hasn’t got all that information, she would need the divorce case number, as court documents are filed under case number. She or the lawyer would need to fill in the court’s application for a duplicate decree and pay the administrative fees for issuing certified copies.  

Burnett Attorneys & Notaries Inc. says that, if you have your case number, it could take one to two weeks. But if you don’t have your case number, it means the court will have to manually search through their records, which could take up to 24 weeks or more. And if the divorce papers have been archived, it could take additional time to retrieve them.

Depending on how much time has elapsed, the documents may have been moved to off-site storage, which would make accessing the papers more difficult, expensive and time-consuming. Although each court may make its own decision on how long divorce records are kept at court, documents are generally kept for at least ten years before being sent to off-site storage. 

Apostil.co.za says that where files are relocated to different courts or off-site storage facilities, this can significantly delay the process. They say, “In this event, an application must be lodged with the Department of Justice. The additional step in the process will incur extra costs and add a considerable extra wait to the timeline.” 

Hopefully that is not the case with the ex-wife’s documents, but it may be.

You could also ask Legal Aid for advice and assistance. It is a means-tested organisation that must assist people who cannot afford a lawyer.

These are their contact details:

Email: communications2@legal-aid.co.za

Tel: 0800 110 110 (Monday to Friday 7am to 7pm) 
Please Call Me: 079 835 717

Wishing you the best,
Athalie