DECEASED estates and Conveyancing

Some thoughts on the legal concept of massing and on joint wills

“Massing” is a concept often encountered in the administration of deceased estates involving Conveyancing.

What is massing?

Massing takes place when two (or more) persons, in a joint will consolidate or “mass” their estates and dispose of the massed estate as a whole either on the death of the first dying, subject to a limited interest such as an usufruct in favour of the survivor, or on the death of the survivor (in the latter instance the limited right granted to the survivor is in the nature of a fiduciary right).

A typical example is where A and B being married in community of property, determine in their joint will that on the death of the first dying their estates should be massed (lumped together or consolidated) and the massed estate bequeathed to their children C and D, subject to a life usufruct in respect of the entire estate, in favour of the survivor.

The retention of a limited interest of some sort appears to be an essential component of massing. If in the stated example, no provision was made for the granting of a life usufruct to the survivor, there would not be a massing in the strict sense of the word.

Many variations on the “typical” scenario of massing exist. It is possible for parties to mass only a portion of their estates. It is also possible for the survivor to receive a limited interest, not in the entire estate, but only in a portion thereof.

Sometimes the parties bequeath the massed estate to the survivor, subject to the condition that on the death of the survivor the massed estate must devolve on the ultimate heirs.

The legal tool of massing is usually employed in the mutual will of parties married to each other in community of property. However there is no restriction as to who may mass their estates. Persons married out of community of property or even relatives, friends or unrelated persons may make use of the concept.

What are the legal requirements for and characteristics of massing?

The following are the requirements of massing:

1. A joint will must have been executed by the parties who intend their estates to be massed;
2. The estates of the parties must be consolidated and the massed estate (or a part thereof) disposed of as a unit, i.e. both the assets of the deceased and the assets of the survivor must be bequeathed;
3. The survivor must adiate to the massing;
4. A limited interest in the massed estate (such as an usufruct or fiduciary interest) must devolve upon the survivor.

Other characteristics of massing worth noting are:

• Disposal of the massed estate may take place, it is suggested, either upon the death of the first dying or the death of the survivor;
• Anyone may mass their estates, not just persons married in or out of community of property to each other;
• Either the whole or part of the estate of one party can be massed with either the whole or part of the estate of the other party/ies;
• Massing may be conditional. For example, a will may state that should the survivor remarry, then in that event, the estate of the deceased and the survivor shall be massed.

Why do people mass their estates?

At first glance massing seems to have highly undesirable consequences for the unfortunate survivor. He/she is effectively giving his/her assets away and in return usually receives no ownership, but a limited real right of some sort, in the whole or part of the massed estate.

Why then do testators provide for massing of their assets and why do survivors adiate to massing?

Human nature has much to do with the matter: at the time of making of a will, the testators do not know who will be the first dying and which the survivor. As the first dying gets to dispose not only of his/her own, but also his/her co-testator’s assets, there is at least one advantage in being the first to depart from this world!

“The motive behind the desire to “mass”, is usually the fear that the survivor will dissipate the assets which the first-dying had hoped would otherwise benefit the children of the marriage, or that a survivor’s fresh venture into matrimony will end in the new spouse filching the family patrimony. It may, however, merely be joint affection for the offspring of the marriage.”