Law for Land Managers 1B Joint and Mutual Wills

Unit 4
Joint and Mutual Wills
Objectives
At the end of this unit you should be able to:

• Define Adiation
• Define repudiation
• Define Joint Wills
• Define Mutual Wills
• Discuss Massing
• Discuss Common law massing
• Discuss Statutory Massing
• Discuss the Doctrine of Election
• Define the Right of Accrual
• Define Joinder Re, Joinder Re at Verbis and Joinder verbis tantum
• Name the circumstances under which the right of accrual does not operate
• Discuss vesting of benefits
• Discuss acceleration of Benefits
• Define Collation

SECTIONS:
1. Adiation and Repudiation
2. Joint and Mutual Wills
3. Massing
4. The Doctrine of Election
5. The Right of Accrual
6. Vesting of Benefits
7. Acceleration of Benefits
8. Collation

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Section 1 Adiation & Repudiation

All beneficiaries have the right to choose whether to inherit or not. Acceptance to
inherit is called Adiation. Refusal to inherit is called Repudiation.

A beneficiary has a reasonable time after vesting has taken place to decide
whether to inherit or not. Where a beneficiary refuses to inherit he or she has to
inform the Master of the High Court in writing. Normally it is accepted that a
beneficiary adiated where no repudiation is made in writing. However, where an
obligation is imposed on a beneficiary or where the testator disposed of property
belonging to the beneficiary, the Master will require an adiation in writing.
Wiener v The Master 1976 (2) SA 830 (7)

The effect of adation is that the beneficiary acquires a vested personal right to
claim delivery or transfer of the inheritance or bequeathed benefit after liquidation
of the deceased estate by the administrator of the Estate.
Greenbery v Estate Greenberg 1955 (3) SA 36 (A)

Repudiation may have the following effects:

1) The will may provide for someone to substitute the repudiating beneficiary.

2) The Right of accrual might become applicable where the repudiated

benefit accrues to the shares of the other testate heirs.

3) The repudiated benefit may fall into the remainder estate of the testator’s
estate and the bequeathed estate may devolve in terms of the law of
intestacy.

A repudiation that was made wrongly can only be reversed by the courts
otherwise repudiation is final. Ex Parte Estate Van Rensburg 1965 (3) SA 25 1
(C); Oxanham v Oxanham’s Executor 1945 WLD 57

Section 2 Joint And Mutual Wills

A. JOINT WILLS

A Joint Will is a separate will of two or more parties in one document. In a joint
Will each testator has the right to revoke or alter his/her will without the
knowledge or consent of the other testator in the joint will.

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B. MUTUAL WILLS

Mutual wills are also known as reciprocal wills.

A mutual will is a will of two or more parties in one document wherein they benefit
one another. Each testator has the right to revoke or alter his/her will. Thus all
mutual wills are joint wills however not all joint wills are mutual wills.

Section 3 Massing
Massing takes place when two or more persons makes a joint or mutual will in
which they add a part or whole of their respective estates to each others estate
and disposes jointly thereof.

It is important to ascertain that the testators intended massing to take place as

there is a legal presumption against massing, meaning that if any doubt exist in
the will about whether the testators intended massing to occur then there will be
no massing. D’ Oyly –John v Lousada 1957 (1) SA 368 (N) 373

In order for massing to take effect it is imperative that the first dying testator
should have disposed of his or her own estate as well as of the estate of the
survivor. Ex Parte Gouws 1952 (3) SA 793 (0) 798

Thus massing only occurs when the survivor has adiated the joint or mutual will
and he or she repudiates then massing cannot take place.

There are two types of massing:

a) Common Law Massing

b) Statutory Massing

A. COMMON LAW MASSING

In the case of common law massing the surviving party or parties need not obtain
a limited interest and full ownership of the estate assets can pass over to the
survivors.

E g: A couple married in community of property mass their joint estate worth N$

600 000 in a joint will. The farm worth N$ 400 000 is bequeathed to the surviving
spouse and the residue of the joint estate to their child. If the surviving spouse
adiates, he /she acquires full ownership of the farm and not a limited interest.
The child will inherit the N$ 200 00 residue of the estate, free from any limited
interest.

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Common law as developed by the courts applies to cases which do not fall within
the scope of Section 37 (i.e. massing in a will of an only testator).

B. STATUTORY MASSING

Statutory massing takes place where

a) A joint will nominate ultimate beneficiaries in respect of the joint property;

b) The surviving testator (s) receives a limited right over the massed property
and

c) The surviving testator (s) adiates the benefit.

The following are requirements in order for Section 37 of the Administration of

Estates Act, 66 of 1965 to operate:

1. The survivor must adiate

2. The survivor should receive a limited interest such as a usufruct or a

fideicommissum in respect of the massed property.

3. There must be a mutual or a joint will,

4. There must be two or more parties to the joint or mutual will and they need
not be married to each other.

5. The property of each testator must be consolidated and all or part thereof
must be dispose off by the mutual will.

6. The survivor must accept the benefit bequeathed to him.

7. The deposition must take place after the death of the first dying testator.

8. The survivor relinquishes his/her share in their massed estate.

E.g. Ben and Sara are married in community of property and their joint estate
consists of a house. In their mutual will they leave their house to their daughter,
Jane, with a usufruct in favour of the surviving spouse. If Sara accepts the
usufruct on the death of Ben, massing takes place.

Once massing has taken place the surviving testator cannot alter or revoke the
mutual will at a later stage. The surviving testator can thus not make an
independent will; he/she is bound to dispose of his/her assets in terms of the
mutual will.

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If the surviving testator decides to repudiate it has the following effect:

1) The surviving testator may not receive any benefit under the will from the
estate of the first dying testator.

2) The surviving testator retains his/her own estate and may dispose of it in
any way he or she wishes

3) The mutual will, will now only be applicable to the first dying testator and
will only be subjected to the provision that the surviving testator may not
receive any benefit from the estate of the first –dying testator.

Massing can also be made conditional and should the survivor testator fail to fulfil
the condition he/she will forfeit his/her benefit under the first-dying testator’s will,
and the heirs of the first-dying testator inherit his or her property.
Holmes Executor v Rawbone 1954 (3) SA 703 (A) 710

The surviving testator is entitled to dispose of property acquired after the death of
the first-dying testator in a separate will, unless the parties have in express terms
deprived the survivor of this right. Joubert v Ruddock 1968 (1) SA 95 E.

Section 4 The Doctrine of Election

Election takes place when a testator leaves a benefit to a beneficiary and at the
same time imposes a burden on him. The benefiary now has to elect whether to
benefit or not because he cannot adiate without accepting the provision that are
not in his favour. One cannot partly adiate and partly repudiate a will; it is either
wholly repudiated or adiated. Van der Merwe v Van der Merwe’s Executrix
1921 TPD at 14

This doctrine only applies if a burden such as a modus or a condition has been
placed on the beneficiary by the testator. Massing is only one branch of the
doctrine of election, because the survivor has to decide whether to adiate or
repudiate. Election must be made within a reasonable time.

Section 5 The Right Of Accrual

(Ius Accrescendi)
This is the right of an heir or legatee to inherit those bequeathed benefits which a
co-heir or co-legatee refuses to inherit or is incompetent to inherit.

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E.g. I leave my house to John and Mary. If John should predecease the testator,
Mary will inherit the house unless a contrary intention is apparent from the will.
The house consequently accrues to Mary.

To determine whether the testator has in fact intended accrual to take place the
law takes into account the following:

1. JOINDER RE (joinder by the thing)

This occurs where the testator gave the same thing to two or more persons in
different bequests in his/her will.

E.g. A leaves his farm to B in clause 1 of his will and to C in clause 3 thereof.
The Interests of B and C are joined by the thing. Here the indication is that the
testator in fact intended accrual to take place. If B cannot take the farm C takes
the whole farm and if both of them take the farm they are co-owners of the farm.

2) JOINDER RE ET VERBIS (joinder by the thing and by the words)

This occurs where a testator in a single bequeaths the same benefit to two or
more beneficiaries.

E.g. I leave my farm to A and B

Labuschagne v Schoeman 1915 CPD 19

E.g. I leave my farm to A and B jointly

Hobson v Hobson (1908) 25 SC 590

E.g. I appoint A and B my universal heirs

In re Estate Ross 1941 CPD 426,434-436

3) JOINDER VERBIS TANTUM (joinder by words only)

This occurs where separate benefits are left to different beneficiaries in a single
bequest.

E.g. I leave ¾ of my farm to A and ¼ to B or I leave half of my farm to A and half

to B.

The following 3 guidelines also help to determine the testator’s intention:

a) The scheme of the will as a whole

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b) The presumption against partial intestacy

c) The nature of the thing bequeathed e.g. where the thing bequeathed is not
divisible the presumption is in favour of accrual.

CIRCUMSTANCES UNDER WHICH THE RIGHT OF ACCRUAL DOES NOT

OPERATE

1) Where a beneficiary’s interest has vested accrual cannot operate

2) Where the interests of the beneficiaries are completely separated by the

testator .E.g. I leave my car to A and my house to B.

3) Where a substitute is named to inherit where the beneficiary does not or

cannot inherit.

4) Where section 2C of the Wills Act applies the right of accrual will be
excluded. E.g. I leave my estate to my sons John and Sam. John dies
before the testator but leaves a daughter Iris. The beneficiary, John,
unable to inherit, is a descendant of the testator and therefore direct
substitution is implied in terms of Section 2 C of the Wills Act of 1953, Iris
will inherit her father’s share.

Where an heir cannot inherit or repudiates and accrual does not take place the
benefit falls back into the estate for the intestate heirs.

Where a legatee fails to inherit or repudiates and accrual takes place, the legacy
lapses and falls back into the estate for the benefit of the testate heirs. If there
are no testate heirs their estate will devolve upon the intestate heirs.

E.g. I leave my farm to my brother, B, and I bequeath the residue of my estate to

my two sisters M and N.

Section 6 Vesting of Benefits

Vesting

The word vesting has two different meanings. Firstly, it is stated that a right vests
in a person, i.e. that such person is a holder of the right. Secondly, it can be used
to draw a distinction between a right that is certain and that is conditional. Where
a person has a vested right, such right cannot be taken away from him, however
a conditional right can be taken away as it has not vested. See Jewish Colonial
Trust Ltd v Estate Nathan 1940 AD 163

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There is a presumption in law that vesting takes place on a testator’s death, this
is so if it is not apparent from the will of the testator as to when vesting should
take place. Estate Cato v Cato 1915 AD 290 at 306

Thus on the death of the testator the heir gets a vested right to claim delivery or
transfer of the bequeathed property from the executor. This right can only be
claimed once the estate is finalized. It should however be noted that although
one has a vested right it does not necessarily mean that you have actual
ownership over the property.

Dies Cedit and Dies Venit

Dies Cedit is the time when a beneficiary gets a vested right to claim delivery of
the bequeathed benefit unconditionally.

In short, dies cedit is when the beneficiary acquires a vested right. This takes
place immediately after the death of the testator even though this right cannot be
claimed unless the estate is finalized. This means that the beneficiary has a right
to the benefit however should he, die after the right has vested and has not yet
been claimed, it will form part of his estate and his beneficiaries would be able to
claim this right.

Dies Venit is the time when the beneficiary’s right to claim delivery of the
bequeathed property becomes enforceable.

In short, dies venit is the time the beneficiary may enjoy his/her property or the
day delivery of the property takes place. It is presumed that a testator intended
both dies cedit and dies venit to take place immediately after his death, however
in practice this is not always possible as the estate first has to be finalized before
the beneficiary can obtain the right to enjoy his/her property.

Both dies venit and dies cedit can be delayed, thus , if dies cedit is delayed, there
is no way that dies venit can take place as one must have dies cedit in order to
get dies venit.

A testator may stipulate in his will when dies cedit and dies venit can take place
and may postpone both or either.

Thus a testator may postpone dies venit as follows:

E.g. I bequeath my entire estate to A but she can only receive the inheritance
when she turns 30. Here it evident that dies cedit will take place after the death of
the testator however dies venit has been postponed until the beneficiary reaches
the age of 30. When the beneficiary turns 30 she will be entitled to use and enjoy
the inheritance.

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The same situation is created in the case of usufructs.

E.g. A leaves a benefit to B subject to B right of usufruct of the bequeathed

benefit during his / her lifetime. Dies cedit is the moment of the testators’ death
so B acquires a vested right however dies venit will only arrive when C, the
usufructuary passes away in order for B to acquire full ownership of the
bequeathed benefit.

Thus for the usufructuary C, both dies venit and dies cedit arrives at the death of
the testator.

The testator may make a benefit conditional subject to the fulfilment of the
suspensive condition. E.g. I bequeath my estate to B if he wins the national
lottery. Here both dies cedit and dies venit are suspended and both will only
arrive once the condition is fulfilled. Should the suspensive condition never be
fulfilled the particular bequest falls away and accrues to other heirs in
accordance with the right of accrual or may devolve in terms of the laws of
Intestate Succession.

Trust and Vesting

Dies cedit and dies venit may be postponed by the testator by making use of a
trust.

E.g. where a testator orders that his trustees keep his property in trust to support
his widow out of the income from it and divide the capital amongst his surviving
children after his death. The children will acquire a vested right only once their
mother passes away. Thus dies cedit and dies venit will only take place then.
Greenberg v Estate Greenberg 1955 (3) SA 361(A)

A trust has the effect of postponing dies venit and dies cedit only takes effect
once the testator dies.

Section 7 Acceleration of Benefits

An acceleration of benefits takes place where an intermediate beneficiary (such
as a fiduciary) repudiates his /her benefit without the testator having made
provision for this.

E.g. “I leave my house to my son, subject to a lifelong usufruct in favour of my

wife”

Should the wife repudiate the benefit the question arises as to whether the house
must go immediately to the son, who is the ultimate beneficiary or whether the

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will must literally be interpreted and the son only be allowed to get full ownership
of the house once his mother is dead.

The courts have adopted two views to this question. In the case of Emanuel v
Estate Rice 1968 (3) SA 502(W) and Louw v FW KPA Albrecht Trust 1998 (3)
SA 1048 CC, the court directed that the bequeathed benefit go to the ultimate
beneficiaries immediately.

However in the case of Ex Parte Albertus 1944 TPD 187 the court refused that
the bequeathed benefit go to the ultimate beneficiaries immediately.

The first view is the most prevailing view at the moment; however one should
always keep in mind the construction of the particular will.

Where a testator leaves a will and the provisions of the will fail the estate will
devolve in terms of the laws of intestate succession, vesting thus has to be
determine. Does it take place when the provisions of the will fail or does it take
place when the intestate heirs are identified? The courts in the case of Harris v
Assumed Administrator, Estate MacGregor 1987 (3) SA 563 (A) decided that
vesting takes place at the date of the ultimate failure of the will.

Section 8 Collation
Collation takes place where the executor of an estate, under certain
circumstances, take benefits given to certain heirs by the deceased during his
lifetime, into account when distributing the estate among certain beneficiaries.

This is based on the presumption that parents wish that children benefit on an
equal basis as far as succession is concerned. Thesnaar v Die Meester 1997
(3) SA 169 (C)

Collation arises when the deceased ‘s property vests, however the obligation falls
away if the heir concerned refuses to inherit or if the co-heirs do not insist on
collation or the testator indicates in his will that collation need not take place.

Collation takes place only in the direct line of the deceased, i.e. amongst his / her
children and further descendants.

The obligation to collate rest on the descendants of the deceased only if they are
heirs of the deceased, whether testate or intestate, heirs are obliged to collate
only if they would have inherited intestate. Ascendants, strangers, collaterals and
descendants who inherit as legatees, usufructuaries, fiduciaries or
fideicommissaries are not obliged to collate.

The descendants who have a duty to collate are the only persons who are
entitled to collate. A surviving spouse who was married to the deceased in

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community of property is also entitled to claim that the deceased’s descendants

collate what they received from the deceased before the division of the joint
estate.

The following benefits must be collated:

a) Benefits received by a child as part of his or her inheritance

b) Benefits received for the promotion of a child’s occupation or business.
c) Benefits given with a view to a marriage.

The following benefits do not have to be collated:

a) Gifts given out of generosity

b) Benefits received by a child for services rendered.
c) Expenses incurred by the parents for the maintenance and education of their
children

The abovementioned benefits must however, be collated if they are out of

proportion to the estate of the deceased.

It should be noted that the benefits to be collated and not to be collated are all
dependent on the intention of the testator which is decisive.

E.g. A leaves an estate of N$ 60 000-00 and leaves behind two children, B and
C. B must collate N$ 20 000-00 and C N$ 10 000-00. The balance for distribution
is N$ 90 000-00 after collation, so that B ought to inherit N$ 45 000-00 and C N$
45 000-00; however N$ 20 000-00 and N$ 10 000-00 respectively are deducted
from these amounts so that B inherits N$ 25 000-00 in terms of the distribution
account, and C N$ 35 000-00. Abrahams v Els 1964 (2) SA 215 D 219

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REVISION QUESTIONS
1. Define and discuss the following concepts:

a) Adiation
b) Repudiation
c) Joint Will
d) Mutual Will
e) Massing
f) Doctrine of Election
g) Collation
h) The Right of Accrual

2. When does a benefit vest in a beneficiary?

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