Many married couples sign a single will together. It feels natural: they have built their assets together and want them to pass to their children in the same way. A joint will is perfectly valid in South Africa. But when it contains a “massing” clause, it can have consequences that the surviving spouse only discovers after the first death, when it is too late to change course.
A June 2025 judgment of the Western Cape High Court illustrates the point. A couple had signed a joint will in 2001 that massed their estates. After the wife died, the husband accepted benefits under the joint will. He later made a new will of his own. The court held that, by accepting those benefits, he had made an irrevocable election and was bound by the joint will in respect of the massed estate. His later will could govern only the assets that fell outside it. The Master was ordered to accept the 2001 joint will for the massed portion of his estate.
This article explains what joint wills and massing are, the choice the survivor must make, and what spouses should consider before signing.
What a joint will is
A joint will is one document executed by two or more people, usually spouses. In law, it is treated as the separate wills of each testator contained in a single document. Each spouse can, in principle, revoke or change their own will while both are alive, although it is good practice to tell the other spouse. A joint will must comply with the formalities in the Wills Act 7 of 1953, just like any other will.
A joint will without massing is simply a convenient way for spouses to record their wishes together. The complications arise when the will masses the estates.
What massing means
Massing occurs when two testators consolidate their estates, or parts of them, into a single unit and dispose of that combined estate as a whole. A typical massing clause says that on the first death, the combined estate goes to the survivor for life (by way of a usufruct or a life interest), and on the second death, it passes to the children.
Massing is not presumed. The will must show a clear intention to consolidate the estates and to dispose of the combined estate, including the survivor’s own property, as one unit. Courts look at the wording as a whole to decide whether the estates were massed.
The survivor’s choice: adiate or repudiate
When the first spouse dies, the survivor must make an election:
- Adiation means accepting the benefits given to the survivor by the deceased spouse’s will. Where the estates were massed, adiation also binds the survivor to the dispositions of their own share of the massed estate. In practice, the survivor gives up the right to deal freely with that property in a later will.
- Repudiation means rejecting those benefits. The survivor keeps their own share of the joint property free of the massing provisions, but forfeits what the deceased spouse’s will gave them.
The election is usually made in writing to the executor, but conduct can also amount to adiation. Accepting benefits under the will, such as taking up the usufruct, may be enough. Once made, the election is generally irrevocable. It should therefore be made only after proper advice, and with a clear understanding of the value of what is being accepted and what is being given up.
Section 37 of the Administration of Estates Act 66 of 1965 deals with massed estates where the survivor adiates. It provides for the restrictions created by the joint will, such as a usufruct in favour of the survivor and the children’s rights on the second death, to be recorded against property such as immovable property, so that the arrangement is protected.
Why massing can cause problems
- Loss of flexibility. A survivor who adiates may remain bound for decades, even if circumstances change. Remarriage, the needs of a particular child or a change in family relationships cannot easily be accommodated.
- Restrictions on assets. Where the survivor holds only a usufruct, selling or bonding property can require the consent of the bare dominium holders, who may be minors or may not agree.
- Uncertainty. Older joint wills are often unclear about whether massing was intended or which assets are included, which can lead to disputes among family members and litigation.
- Tax consequences. The way property passes between spouses, and the creation and termination of usufructs, affect estate duty and capital gains tax. A structure that suited the couple when the will was signed may no longer be efficient.
- Interaction with the marital regime. Where spouses are married in community of property, each can dispose only of their half of the joint estate. The massing provisions must fit the matrimonial property system, including the accrual system where it applies.
Joint will or separate mirror wills?
For most couples, separate wills that “mirror” each other achieve the same goals with more flexibility. Each spouse can leave their estate to the other, with the children as substitute heirs, and the survivor remains free to update their own will later. Where spouses want to protect children, for example from a future spouse of the survivor, this can often be achieved more precisely through a testamentary trust or a carefully drafted usufruct than through massing.
There are situations where a joint will or massing is appropriate, but it should be a deliberate choice made with advice, not a default.
A checklist for spouses
- Find your existing will and check whether it is a joint will and whether it contains a massing clause.
- Consider whether the arrangement still reflects your wishes and your family’s needs.
- Review the will against your marital regime and your antenuptial contract.
- Consider whether separate wills, a testamentary trust or a usufruct would achieve your goals more flexibly.
- If you are a surviving spouse under a joint will, do not accept benefits or sign an election until you understand the consequences of adiating.
- Take tax advice on estate duty and capital gains tax implications.
- Store your will safely and tell your executor where to find it.
How O’Reilly Law can help
We review existing joint wills, advise couples on whether massing still suits them, and draft separate wills, testamentary trusts and usufruct arrangements. We also advise surviving spouses and executors on the election to adiate or repudiate and on the administration of massed estates, and we assist families where the meaning or validity of a joint will is disputed.
Contact us to review your will or a joint will in an estate.
Related reading: Testamentary trusts: protecting your children’s inheritance · Estate duty: how it works and how to plan for it
This article is general information and not legal or tax advice. Correct as at November 2026.