Uncertainty, from a conveyancing perspective, prevails with regard to massing and adiation, and massing and election. In this article it will be endeavored to shed more light on the difference between the two, and to indicate what impact it has on the transfer of immovable property emanating from an estate where massing occurred.
Meaning of massing
Massing occurs when two or more persons, with testamentary capacity, combine or consolidate (mass) their separate estates (or their undivided half‑shares of their joint estate where they are married in community of property) into a single massed estate, prescribing in the will what must be done with this massed estate on the occurrence of a specific event, usually the death of the first dying testator.
There are two forms of massing namely “statutory massing” which is set out in section 37 of the Administration of Estates Act, 66 of 1965, and “common law massing”.
A distinction will now be drawn between the two types of massing.
Section 37 of the Administration of Estates Act 66 of 1965 is the relevant authorization governing statutory massing, and reads as follows:
“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.”
The requirements of statutory massing are inter alia the following:
● The first–dying testator must have died on or after 2 October 1967, being the date on which the Administration of Estates Act, 66 of 1965 came into operation.
● There must be two or more persons as parties to the mutual will. In practice, it is usually married couples whether married in or out of community of property) who utilize statutory massing. However, there have been instances where the parties were not married to each other; for example, two sisters, a father and son, and so forth. The parties need not even be related.
● The parties must make a mutual will, (a mutual will is a joint will in which two or more testators have mutually benefited one another in the same document).
● The parties must mass the whole or part of their separate assets into a consolidated unit and this unit must be disposed of in the mutual will. Uncertainty in our law exists as to whether this requirement is peremptory or not.
● The mutual will must grant the survivor “a limited right” in respect of any property which has been massed. A direct bequest of the property of the first dying which does not form part of the massed estate will not be sufficient. The limited right can be in the form of a usufruct, a fideicommissum or an income beneficiary of a trust, etc.
● The disposition of the massed estate must take place sometime after the death of the first dying. This includes a disposition that takes place at the death of the first dying.
● The survivor must adiate on the death of the first dying.
Common law massing
Common law massing shows great resemblance to statutory massing. It sometimes happens that two or more persons mass their separate estates and disposes of the massed estate without granting the survivor a limited interest in the massed assets. The survivor is, however, awarded something else or even nothing. For example, A and B, who are married in or out of community of property, stipulate in their mutual will that, on the death of the first‑dying, the survivor inherits the house while the residue of the massed estate passes to their children. In view of the provisions of section 37 of the Administration of Estates Act it is clear that this construction does not fall within the scope of “statutory massing”. The survivor obtains, after all, full ownership of an asset and not only a limited interest. This construction is what is termed by writers as “common law massing”, and the surviving testator would have to elect whether to accept or repudiate the provisions of the will. Common law massing could also have the effect that the survivor receives nothing from the massed estate.
Election or adiation
Election means the choice which is open to an heir or legatee who in terms of a will is required to dispose of his/her own property or is bequeathed property subject to certain conditions. Such beneficiary must then decide between accepting the testamentary benefit or rejecting it. This decision is known as election.
If a legatee or heir with vested rights dies before he or she has decided to elect or adiate the right to do so passes to his or her estate. In the case of Eyssell and Another v Barnes N.O. and Others, Case No. 3617/92, handed down in the Supreme Court of South Africa, Natal Provincial Division, McLaren J held that the power to adiate or repudiate does not vest in the executor, but in the heirs of a person who has the right to elect whether to adiate or repudiate, but dies without having exercised that right. This latter view is also held by Corbett, Hahlo, Hofmeyr & Kahn, The law of succession in South Africa, page 15 and also by the Registrars of Deeds at the Annual Conference (see RCR 29 of 2008).
Acceptance of a benefit under a will is called adiation. If a beneficiary adiates it means that he or she receives the benefits bequeathed to him or her, but it also means that he or she accepts all the conditions attached to the benefit and must adhere to them.
Rejection of a benefit under a will is called repudiation. If a beneficiary repudiates, he or she forfeits all benefits as beneficiary under the will but retains his or her own property.
The choice must be made within a reasonable time, but the beneficiary cannot be compelled to make the choice before he or she knows what material consequences will arise from his or her choice.
The beneficiary’s choice to adiate or repudiate is final unless he or she can show that the choice was made “in excusable ignorance of his rights”. The High Court must be approached for an order setting aside the decision.
In summary, where there is a massed estate, and the surviving spouse has abided by the terms of the joint will, adiation will be necessary where a limited interest is received, and election necessary where no limited interest is obtained with regard to the massed asset.
From a conveyancing perspective the provisions of section 21 and regulation 50(2)(b) of the Deeds Registries Act 47 of 1937 requires closer perusal.
In the case of massing and adiation, where a joint estate is involved, the surviving spouse does not have to join the executor in the passing of transfer of the massed property, provided proof is submitted that the surviving spouse has adiated (see regulation 50(2)(b)).
However, where massing and election has occurred, and the property forms an asset in the joint estate, the surviving spouse must join the executor in the passing of the transfer of the massed property and documentary evidence in the form of an affidavit from the surviving spouse must be lodged to prove the election by the surviving spouse. Although the latter proof is not a specific requirement in terms of the Act, section 4(1)(a) sanctions the request for same.
In both instances; where the property forms part of an asset in a joint estate, the joint estate must be divested (see regulation 50(2)(c)).
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TONKIN CLACEY PRETORIA
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