Your will is one of the most important documents you will sign in your life so it’s worthwhile to get professional advice when drafting it. In most cases we do not recommend the use of joint wills – it is simpler for spouses to have separate wills and bequeath their estates to each other.
Joint wills seem more suited to earlier times where most marriages were in community of property (which is no longer so common) and when the principle of marital power (i.e., the husband had the power to administer both his wife’s separate property and their community property) was applicable.
So, when would a joint will be used?
Joint wills can be used:
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- where spouses are married in community of property, and
- they wish to “mass” the whole or a portion of their joint estates.
What is “massing”?
“Massing” occurs where two persons wish to combine the whole or a portion of their estates into a single consolidated unit and agree on the devolution of the consolidated unit to specified beneficiaries in terms of their joint wills. There is a presumption against massing so massing must be stated explicitly, otherwise the joint wills may be treated as the separate wills of the respective spouses, in terms of which each dispose of their own estate.
Is massing binding?
A joint will does not bind the survivor unless there is a massing of the whole or a portion of the estate or unless there is a conditional bequest to the survivor or a condition to the appointment of the survivor as heir.
In the case of massing or the imposition of any such conditions, the survivor still has the option to adiate (accept) or repudiate (refuse) the bequest or appointment subject to the conditions.
A party to a joint will can at any time, even before the death of their spouse, make a separate will dealing with the assets in their estate. The principle of freedom of testation (testators are free to dispose of their assets in a will in any manner they deem fit) still applies.
Concerns around using a joint will
All of these concerns pertain to the fact that the original joint will must be lodged with the Master’s Office, which is currently not operating efficiently.
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- The Master’s Office is in a state of disarray such that it is possible (and even likely) that the Master’s Office may lose the original joint will;
- Losing the original joint will may result in difficulties and delays in the estate of the second testator dying. For example, a court action may be necessary for an order to compel the Master to accept a copy of the original joint will as the valid will of the second testator to die;
- The surviving family of the second testator to die could be unaware of the joint will and that the original is lodged with the Master;
- The survivor and their family may move out of the jurisdiction of the Master’s Office where the original joint will was lodged which would lead to complications in lodging the estate in the correct Master’s Office or applying for probate if the survivor no longer resides in South Africa.
In short, joint wills have some distinct disadvantages, even if you think your affairs are simple. Speak to your CERTIFIED FINANCIAL PLANNER® to be sure that your current wills are up to date and still appropriate for your circumstances.
By Morné Bezuidenhout, CFP®
B.Com LLB
