DIFFERENT TYPES OF WILLS

Where parties are married to each other in community of property, the legal effect of such a marriage is that all the assets and liabilities owned by each party prior to the marriage, or acquired by them during the course of the marriage, will form part of a communal or joint estate of the two spouses.  This means that all assets acquired during the course of the marriage, will be owned by them in equal, undivided shares.  In most instances spouses married in community of property to each other execute a joint Will, which is a single Will (a single legal document) prepared and signed by both the spouses in terms of which all their assets and property are bequeathed according to their wishes.

The fact that only one Will is executed does not necessarily mean that the Testator and the Testatrix are jointly deciding on how their assets should be divided upon their deaths, eventhough the parties are married to each other in community of property.  The law recognizes each Testator’s right to dispose of his/her assets as each party deems fit.  As such, each party will decide how his/her estate is to be divided upon their deaths separate from each other, although their wishes are contained in one single Will.

If parties are married out of community of property and also decide to execute a joint Will, the drafter of the Will needs to ensure that the Will reflects whether it is two separate Wills contained in one document, or whether the massing of the separate estates of the parties (as referred to below), will take place.  Said joint Will also needs to prescribe what will happen if the husband and wife should die simultaneously, or within a short period of time (ie. 30 days) from each other.

Each party retains the right to amend the joint Will without the consent of the other Testator.  Each party also has the right to draft a new Will at any given point in time, without having the obligation of informing the other Testator thereof.  Should the joint Will be the last Will of the deceased, said Will will be valid in respect of that deceased irrespective of the fact that the surviving spouse executed another Will subsequent to the signature of the joint Will.

Although a joint Will is a common phenomenon amongst married couples, caution must be taken when drafting same as the parties’ assets, liabilities and their separate needs for the division of their assets upon death needs to be taken into account when one considers whether a joint Will is the answer to the parties’ needs.   Lastmentioned is critical, especially in light of the fact that a joint Will might result in negative financial and tax implications for one or both of the parties.

Parties can also execute one Will in terms of which it is decided that the massing of their separate estates, or the massing of the joint estate needs to take place.  Massing of estates takes place when the estate of two persons is massed into one estate upon the death of the first of them, for the purpose of dealing with a communal asset of both the parties.  Even if massing took place, the surviving spouse has the right to either accept or to refuse the joint Will and the massing of the estate assets upon the death of the first of the Testators.  This leaves the door open for the surviving spouse to walk away from the joint Will if he/she refuses to accept the terms of the joint Will upon death of the first Testator.  Even the acceptance or refusal of a Will in which a massed estate is created, can have a variety of tax implications and as such, caution is advised when the execution of such a Will is being considered.

Nothing however prevents married couples to each execute a Will in their own names in terms of which their exact wishes as to the division of their respective estates are stipulated.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)