Study Unit 11: Joint and Mutual Wills: Adiation and Repudiation; Election; The Massing of Estates

Question 1

What is a joint will?

Answer 1

A Single document containing testamentary dispositions of 1+ T

Question 2

What are the advantages of a joint will?

Answer 2

Executed only once, irrespective of number of T’s (so single set of witnesses sign 1 will, rather than W’s for each and every one)

Question 3

Give an example of a joint will?

Answer 3

A and B (married in community of property) make will declaring C as their sole heir.
- Upon A’s death, his half share will devolve onto C, and upon B’s death hers will do the same.
- A and B each retain full freedom of Testation prior to death, and each can amend/revoke their portion of the joint will during their lifetime, even w/out informing other T.

Question 4

What is a mutual will?

Answer 4

Joint will w/ one important feature: T’s benefit each other mutually

Question 5

What is Adiation?

Answer 5

Acceptance of a benefit (under a will/in terms of intestate succession) by a beneficiary

Question 6

What is Repudiation?

Answer 6

Rejection of a benefit (under a will/in terms of intestate succession) by a beneficiary

Question 7

When does an executor require express adiation?

Answer 7

If a benefit is encumbered.

Question 8

How must repudiation be confirmed?

Answer 8

always expressly

Question 9

Is adiation/repudiation final?

Answer 9

yes, beneficiary is bound by choice

Question 10

When can a beneficiary undo their decision to adiate/repudiate?

Answer 10

Certain exceptional circumstances
- principal instance = beneficiary can show they made their decision in excusable ignorance of their rights

Question 11

Ex Parte Estate van Rensburg 1965

Answer 11

Beneficiary’s choice to adiate/repudiate is final

• HOWEVER, B who has made the choice between the two in excusable ignorance of rights can be permitted to retract the choice

B repudiated specific benefit under assumption that they can nevertheless adiate another benefit bequeathed to them in the same will, B’s assumption was erroneous because they must accept the whole will as its applicable to them, can’t pick and choose.
- If a B can show they they were excusably ignorant regarding this rule of law, they can be permitted to retract their decision.

Question 12

What is election?

Answer 12

Refers to the choice btw adiation and repudiation in instances of an encumbered benefit, typically where T imposed some obligation/other burden along with a benefit

Question 13

What is the rule that applies in terms of election and encumbered bequests?

Answer 13

B must take the good with the bad
- i.e., B can’t accept the benefit without also taking on the obligation/burden
- if B can’t (for whatever reason) take on obligation/burden, they must repudiate
- choice in this regard is absolute: if B repudiates one benefit bc there is an obligation attached, they must repudiate all benefits.

Question 14

When is election particularly important?

Answer 14

in the massing of estates

Question 15

What is the massing of estates?

Answer 15

The consolidation of estates or parts of estates by different Testators’s into a single economic unit for purposes of joint disposition

Question 16

Give an example of massing of estates

Answer 16

Massing of two share portfolios from separate estates of A and B (married out of community of property w/out accrual) in a mutual will.

Question 17

s37 of the Administration of Estates Act 66 of 1965

Answer 17

‘If any two or more persons have by their mutual will massed the whole or any specific portion of their joint estate and disposed of the massed estate or of any portion thereof after the death of the survivor or survivors or the happening of any other event after the death of the first-dying, conferring upon the survivor or survivors any limited interest in respect of any property in the massed estate, then upon the death after the commencement of this Act of the first-dying, adiation by the survivor or survivors shall have the effect of conferring upon the persons in whose favour such disposition was made, such rights in respect of any property forming part of the share of the survivor or survivors of the massed estate as they would by law have possessed under the will if that property had belonged to the first-dying; and the executor shall frame his distribution account accordingly.’

Question 18

What is the effect of s37 of the Administration of Estates Act in the case of adiation by the survivor?

Answer 18

Should the surviving testator adiate the limited interest bequeathed to them in terms of the mutual will (typically a usufruct or fideicommissum in their favour), they are bound to the provisions of the mutual will and may not amend or revoke those provisions in the future

The surviving testator who adiated the limited interest may, however, dispose of assets acquired after the mutual will came into operation,
- in other words assets that do not form part of the massed estate

The ultimate beneficiary is entitled to claim from the deceased’s executor any rights in respect of the bequeathed assets of the first-dying testator as well as the surviving testator as they are entitled to in terms of the mutual will.

Question 19

What is the effect of s37 of the Administration of Estates Act in the case of repudiation by the survivor?

Answer 19

Should the surviving testator repudiate the limited interest bequeathed to them in terms of the mutual will, the survivor may not receive any other benefit(s) in terms of that will

The surviving testator then retains their own assets and may dispose thereof as they wish.

The mutual will becomes the will of the first-dying testator only and regulates only the devolution of the first-dying testator’s assets.