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We are married out of community of property, can we make a joint will and if so, how will our separate estates be dealt with?
08 April 2019  | Tiaan Du Plooy
 

Summary:

We are married out of community of property, can we make a joint will and if so, how will our separate estates be dealt with?

Summary:

My wife and I are married out of community of property, we want to make a joint will is this possible? And how will our separate estates be dealt with?

 

Article:

Marriage out of community of property

Because in community of property is the default regime, marriages and civil unions will only be out of community of property if an ante-nuptial contract exists in which community of property is excluded.

These marriages can be with or without the application of the accrual system.

With accrual

All marriages entered into after November 1, 1984 and all civil unions subject to an ante-nuptial contract are by default subject to the accrual system unless it is explicitly excluded in the contract.

The accrual system aims to equalise the increase in wealth of the two spouses to the marriage or union during the subsistence of the marriage, by giving a claim to the spouse with the smaller increase, or accrual, against the spouse with the bigger accrual. Upon divorce or death of one of the spouses, the increase in the real value (after adjustment for inflation) of the estate of both spouses, is added up and divided by two.

Where the first dying party has the smaller accrual, the claim will be against the survivor who will have to pay the claim unless he or she inherits more than the amount of the claim. Should the entire estate be bequeathed to someone else (e.g. children), administration can become quite complicated if the surviving spouse does not have sufficient cash to settle the claim. This can be a particularly thorny issue in a second or third marriage if the surviving spouse has to pay a claim to the estate, but the beneficiaries are not his or her own children.

In a marriage out of community of property with the accrual system, legislation excludes all inheritances or donations received during the course of the marriage from the accrual.

Without accrual

 

A marriage out of community of property without the accrual system is the most simplistic regime with regard to the administration of the estate, because there is no accrual claim and parties will generally be able to dispose of their assets as they please. One exception is where the survivor is left with insufficient support, in which case there may be a claim under the Maintenance of Surviving Spouses Act

A couple married out of community of property can make a joint Will/Testament. Both will bequeath their estate separately to their intended beneficiaries.

Massed Estate

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.

Statutory massing

Section 37 of the Administration of Estates Act 66 of 1965, 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.

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.

 

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