An analysis of the application of section 2B of the Wills Act 7 of 1953 to married Muslim couples who subsequently divorce
Author: Muneer Abduroaf
Affiliations: BA (Hons) LLB LLM PhD, Associate Professor, Department of Private Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 34 Issue 1, 2023, p. 210 – 218
Section 2B of the Wills Act 7 of 1953 states that “[i]f any person dies within three months after his marriage was dissolved by a divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage.” This note looks at the application of section 2B of the Wills Act to a divorced Muslim spouse in the event that on his or her death, he or she leaves behind a will stating that his or her estate should be distributed in terms of the Islamic law of succession. An overview of the application of the Islamic law of succession within the South African context is looked at by way of introduction. The impact of section 2B of the Wills Act on the right of a divorced Muslim spouse to inherit in terms of an Islamic will is then analysed. Possible constitutional challenges in the application of the Islamic law of succession within the South African legal context are also highlighted. The note concludes with an overall analysis of the findings and makes a recommendation.