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
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).
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.
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
parties bequeath the massed estate to the
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?
are the requirements of massing:
joint will must have been executed by the parties who intend their estates to
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;
survivor must adiate to the massing;
limited interest in the massed estate (such as an usufruct or fiduciary
interest) must devolve upon the survivor.
Other characteristics of massing worth
Why do people
mass their estates?
- 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.
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
then do testators provide for massing of their assets and why do survivors
adiate to massing?
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!
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.”