Common Law massing

This article seeks to provoke debate about the applicability of section 21(c) of the Deeds Registries Act in cases where massing has taken place, specifically in the mode of common law massing; the latter being the type of massing where, after adiation (acceptance), the property is transferred to the surviving spouse and not just a limited interest, as would have been the case in statutory massing.

While section 21(c) provides that a surviving spouse in a joint estate may not join an executor in dealing with assets in a joint estate where massing and adiation has occurred, experience has shown numerous section 45(1) Act 47 of 1937 transfers by endorsements, where a surviving spouse acquires property by common law massing and still joins the executor despite the lodgement of an adiation certificate (regulation 50(2)(b) Act 47 of 1937).

The justification behind section 21(c) with regard to the exclusion of the surviving spouse is clearly discernible in the premise that the executor is dealing with the "massed estate of the deceased and the survivor" and not with the joint estate per se. It therefore goes without saying that the surviving spouse should not join the executor.

The difference between the above two concepts is at the core of the concept of massing, in terms of which a new estate is formed and put at the executor's disposal on the one hand, and the normal joint estate, manifested in the existence of each spouse's share on the other. The massed estate is entirely under the administration of the executor in the former, while only the share of the deceased is under administration in the latter. Whether section 45(1) applies or not is another question, given the fact that the surviving spouse is now acquiring the massed unit, not shares.

The foregoing statement obviously also challenges the resolution in RCR 15 of 1968. In terms of the said resolution a surviving spouse in a marriage out of community of property who has adiated to massing of their estate, must pass transfer. This would lead to a counter productive position, especially in common law massing, whereupon the surviving spouse in a marriage out of community of property, relying on RCR 15 of 1968, passes transfer to him/herself.

In conclusion, the provisions of section 21(c) are quite clear, the surviving spouse does not join the executor, where massing and adiation has taken place. To this end an adiation certificate is lodged under regulation 50(2)(b) of the Act.

Republished with permission from SA Deeds Journal

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