A joint will, in spite of its form, is merely the two separate and distinct wills of two individual testators, disposing of their respective estates in one document, unless they choose to mass their estates. Massing, simply stated, is the pooling of assets by two individuals. Where the testators have not massed their estates, a testator is free to draw a new will at any time, even after the death of the first dying. The fact that the surviving testator accepts benefits which flow from bequests made by the first dying does not affect the survivors freedom to draw a new will.
In the recent case of Wessels N.O v Die Meester [2007] SCA 17 (RSA) the Supreme Court of Appeal undertook to review the law in respect of the validity of a joint will after the death of the first dying testator. The court also reviewed the law relating to the revival of revoked wills, that is wills that have been superseded by subsequent wills.
The testator in the Wessels case was married in community of property to the testatrix with whom he executed a joint will on the 18 January 2002 (the 2002 will). The main bequests contained in the 2002 will operated on the condition that the testator would be the first dying. After the death of the testatrix, the testator executed two valid codicils, that is the addendums to his will, each expressly stating that it was to form part of the 2002 will.
After the death of the testator, the executor of his estate was of the view that the 2002 will was to be read together with the two codicils to give effect to the intention of the testator. The Master disagreed with the executor and ordered that the estate be dealt with intestate, that is as if no will had been drawn. The executor applied to the court for confirmation of his view of how the testators estate should devolve. The intestate heirs opposed the application and brought a counter application for a declaratory order that the estate devolve intestate.
The three questions which arose for decision by the Appeal Court were as follows:
* Did the 2002 will terminate on the death of the first dying spouse?
* If so, could the surviving spouse have revived it?
* If so, did the surviving spouse in this matter in fact revive the 2002 will?
Did the 2002 will terminate on the death of the first dying spouse?
The court found that where bequests by the surviving testator were made subject to the condition that he be the first dying, the joint will falls away on the prior death of the other testator. In the absence of a new will, his estate will devolve intestate.
On the facts of the Wessels case, the court held that the main bequests were clearly made subject to the testator being the first dying. In the only clause providing for the testatrix being the first dying, the testator was named sole beneficiary of her estate and no provision was made for the devolution of the testators estate on his subsequent death. The court concluded that the 2002 will fell away and was of no force and effect after the death of the testatrix. The testator was required to draw a new will to deal with his estate after her death.
Could the surviving spouse have revived the 2002 will?
As the 2002 will fell away on the death of the testatrix, it was analogous to a revoked will unless it could be proved that the testator somehow revived the 2002 will. The executor argued that there were two indications of the testators intention to revive the revoked 2002 will; namely the two codicils and the references in the two codicils to the 2002 will. The Appeal Court confirmed the two requirements for revival of a revoked will: namely that the revival must be contained in a new document and that the testators intention to revive the revoked will must be clearly spelled out in that new document. The court accepted that a codicil constitutes such a new document by which a testator may revive a will.
If so, did the surviving spouse in this matter in fact revive the 2002 Will?
The court found that nothing in the wording of the relevant codicils evidenced the intention of the testator to revive the 2002 will. On the contrary, the testator believed that the 2002 will continued to be of full force and effect; it was clear from the wording of the codicils that his sole intention had been to amend the 2002 will which ruled out any finding of an intention to revive. The court thus held that the 2002 will fell away after the death of the testatrix without having been revived by the testator. The appeal by the executor was therefore dismissed with costs.
To avoid having a joint will rendered invalid on the death of the first dying testator, be vigilant in the drafting of bequest clauses and ensure that the devolution of the estates of both testators is adequately addressed.
SHAFEEKA HARTLEY
ASSOCIATE
DENEYS REITZ INC.
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