By Clement Marumoagae
In A.S and Another v G.S and Another 2020 (3) SA 365 (KZD) para 54, the court observed that:
‘[i]t is a general accepted fact that in a case of a woman married in community of property that the assets acquired with her husband’s income fall into the joint estate and she becomes the co-owner of the assets. Whereas, if spouses are married out of community of property, the assets amass in the husband’s separate estate. The wife has no right of ownership in respect of those assets and the husband is able to use and dispose of them without the consent of his wife. This may impact negatively upon the rights, interests and security of the wife concerned in various ways: The husband may recklessly dispose of the family assets or disinherit her and leave her with nothing. She may be forced out of her own house. She may be left with nothing to live on in her old age or to ensure that her basic needs are met, including health care, food and security. The husband may recklessly fritter away the family’s wealth to the prejudice of the wife and children’.
One of the ways of preventing the above-mentioned prejudicial outcome is for the spouses, irrespective of the matrimonial property regime that is applicable to their marriage, to combine their estates through the concept of massing. In Strauss v Strauss and Others (2020/2236) [2023] ZAGPJHC 377 (24 April 2023) para 14, it was held that ‘[m]assing occurs when the property or part of the property of two or more testators is consolidated or massed for the purpose of a joint disposition after the death of the survivor’. Most importantly, the court made it clear that massing is usually a product of a mutual will by spouses where the surviving spouse is granted the power upon the death of the other spouse to make an election by either repudiating or adiating, by accepting the benefit under the will. Should the surviving spouse accept the benefit under the mutual/joint will he or she will be irrevocably bound by its terms. This entails that the massed property that has been jointly disposed of by the spouses will devolve in terms of the mutual/joint will upon the beneficiary or beneficiaries. As a result, the surviving spouse will lose the freedom to vary or revoke his or her own disposition in the mutual or joint will. In simple terms, massing takes place when spouses during their lifetime as testators of their separate estates create and sign a joint/mutual will where they expressly and clearly join their assets or portions thereof and dispose of the joined assets to one of the spouses upon the death of the other, wherein such a surviving spouse would be granted a limited interest in the joined assets and clearly indicating that when such surviving spouse dies, the joined assets should be inherited by identified beneficiaries, usually their children.
As was stated in Rasenberg v Dry’s Executor 1911 AD 679, massing is a common law concept where beneficiaries acquire real rights with respect to the share of the spouse who died first and personal rights in relation to the share of the surviving spouse. However, massing is now regulated in terms of section 37 of the Administration of Deceased Estates 66 of 1965. In terms of this provision, when spouses have massed their assets or portions thereof and disposed of such assets to the surviving spouse upon the death of one of them thereby conferring on the surviving spouse any limited interest in respect of the massed assets, the acceptance of the terms thereto by the surviving spouse shall confer on the surviving spouse such rights in respect of any property forming part of the share of the survivor or survivors of the massed assets as they would by law have possessed under the will if such assets had belonged to the deceased spouse.
Massing is generally effected through mutual or joint wills. The Supreme Court of Appeal made it clear in Rhode v Stubbs 2005 (5) SA 104 (SCA) paras 16-18, that generally when analyzing mutual or joint wills of spouses one should proceed on the hypothesis that one is dealing with separate wills until the contrary clearly appears.
There is a presumption against massing and the testator is presumed to have disposed only of his own estate (see Brummond v Brummond’s Est 1993 2 SA 494 (Nm) 500). It is thus, important that a joint or mutual will is drafted clearly to remove any ambiguity as to the intention of the spouses in respect of joined assets upon the death of one of them. The mutual or joint will must clearly indicate that the surviving spouse will have control of the massed assets and enjoy the standard of living to which he or she was accustomed during the lifetime of the first-dying spouse. It must be clear from the joint or mutual will whether the spouses as testators intended that the estate of the spouse who will die first was to be consolidated with that of the surviving spouse for the purposes of a joint disposition to the specified beneficiary or beneficiaries on the death of the surviving spouse (see Theart v Scheibert and Others [2012] 4 All SA 278 (SCA) para 21).
In conclusion, it is important to note that massing is not limited to the combining of the spouses’ estates and can be created in respect of two or more persons who may not be married to each other. Joint wills require expertise and attention to detail. Should you require assistance with either drawing a joint will or challenging or defending such a will in court, feel free to contact us.
