JOINT WILLS AND MASSING OF ESTATES

1. JOINT WILLS

The most common form of will is the joint will. Although this is the form normally preferred by spouses married in community of property to each other, any two or more persons can execute a joint will. A joint will is therefore nothing more than a document containing the separate wills of two or more persons, irrespective of whether they are married to each other or in any other way related to one another.

2. MUTUAL WILLS

Although a mutual will has to take on the form of a joint will, not all joint wills qualify as mutual wills. In a mutual will two or more testators will benefit one another in a single document whereas in a joint will the testators can bequeath their estates to whoever they wish to benefit. Often in practice joint wills and mutual wills are simply referred to as joint wills not taking into account the difference between the two forms of will.

3. REVOKING OF JOINT / MUTUAL WILLS

A testator is at all times free to revoke or amend his/her will, whether executed singly or jointly, and such revocation or amendment does not have to be disclosed to the other testator/s.

4. MASSING OF ESTATES

4.1 Section 37 of the Administration of Estates Act, No 66 of 1965, provides for the massing of estates.

4.2 Meyerowitz, author of the well-known text book “The Law and Practice of Administration of Estates”, defines massing as follows:

“In order for a will to effect a massing it must be a joint will by the testators jointly disposing of the property of both, the disposition taking effect after the death of the survivor, who obtains benefits during his lifetime.”

4.3 It is generally accepted that a bequest of property by a testator in his/her will only applies to property belonging to such testator. This assumption also applies to joint and mutual wills and it gave rise to the presumption against massing in the case of reasonable uncertainty. Therefore, unless it is clear from the wording of the will that the testators meant for their respective estates to be massed, it will be assumed that each disposed of his/her own estate.

4.4 It is therefore important for the wording of a joint will to be very clear as to whether the testators intend to mass their separate estates or whether it is merely the intention to dispose of the estate of the first-dying.

5. THE DOCTRINE OF ELECTION

5.1 A person is free to reject an obligation placed on him/her in terms of a will but he/she will then not be entitled to accept any benefit from the same will. This applies to single as well as joint wills. Therefore, a person who wishes to accept a benefit in terms of a joint will has to comply with any obligation simultaneously conferred upon him/her. The whole of the joint will have to be unconditionally accepted (called “adiation”) or rejected (called “repudiation”). This principle is referred to as the “doctrine of election” and once a choice has been made it cannot be reversed.

5.2 However, it will not be expected of a person to exercise an election (whether to “adiate” or “repudiate”) unless he/she is in a position to determine the financial consequences of his/her choice. In practice this will normally be possible at the stage when the executor (or his/her representative) is ready to commence drafting of the liquidation and distribution account which will reflect, amongst others, the gross asset value of the joint estate, the total liabilities, the manner of distribution of the net assets amongst the beneficiaries and the estate duty calculation.

6. MANNER IN WHICH AN ELECTION IS EXERCISED

The choice whether to adiate or repudiate has to be exercised expressly and it has to comply with the following requirements:

6.1 the election has to be made in writing;

6.2 the particular assets and the testamentary dispositions pertaining thereto have to be acknowledged by the beneficiary;

6.3 the beneficiary exercising his/her election has to confirm that he/she is fully acquainted with his/her right to adiate or repudiate and the consequences of either choice;

6.4 the adiation or repudiation has to be signed by the beneficiary personally before two witnesses;

6.5 an attorney or other suitably qualified person has to certify at the end of the document containing the adiation or repudiation that the legal implications of either choice have been explained to the beneficiary, that the latter understands the implications and that, after due consideration, the person decided to adiate or repudiate, as the case may be.

7. THE EFFECT OF REPUDIATION

7.1 The surviving testator may not receive any benefit from the estate of the first-dying testator.

7.2 The surviving testator retains his/her own estate and is free to dispose
of his/her estate as he/she pleases.

7.3 The joint will becomes the will of the first-dying testator only and therefore relates exclusively to his/her estate.

8. GENERAL

8.1 We reiterate what we had already mentioned in previous articles of this column namely that a will is a specialized document requiring strict compliance with the law and therefore it is essential to have it drawn up by an expert after careful estate planning had been done.

8.2 Readers are also advised to review their wills regularly, particularly when there is a change of status, for example marriage (or the dissolution thereof) or the birth of a child.