This article is not intended to provide a legal treatise on massed estates, but merely to provide a simple distinction between massing and adiation, and massing and election.
The question begging an answer is whether a will must provide a limited interest in the massed property in favour of the surviving spouse. According to Wille's Mortgage and Pledge (Third Edition) on page 299, it is a prerequisite that the surviving spouse receives a limited interest in the massed property. The authority for this is probably based on the provisions of section 37 of the Administration of Estates Act, 66 of 1965. Furthermore the case of Secretary, South African Association v Mostert 1873 Buch 31 provides that "the supervisor has accepted some benefit under the will." Adiation is thus dependent on the surviving spouse obtaining a limited interest in the massed estate.
However, when election occurs in a massed estate entirely, there is no necessity for a limited interest and the quid pro quo may lie distinct from the inheritance.
Thus to summarise, where the 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.
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.
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 of 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)).
Republished with permission from the SA Deeds Journal