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Rhode v Stubbs

7 September 2006

Rhode v Stubbs 2005 (5) SA 104 (SCA) is a rare decision regarding the legal principles underlying the massing of estates. The bulk of South African decisions dealing with this area of our law of succession were decided more than a half century ago.

The facts of Rhode were as follows:
Attie and Lettie Williams were married in community of property. They had executed a mutual will in which they bequeathed one half of an immovable property to their son Charles, and the other half to Evelyn, Attie's daughter from a previous marriage. These bequests were made subject to a usufruct in favour of the survivor of the two testators. When Attie died, his share of the immovable property devolved on the two legatees (Charles and Evelyn), while Lettie enjoyed the usufruct. In his lifetime Charles had been the spouse of the respondent in the present case (Stubbs). Prior to her death in 1969, Lettie executed a will in which she bequeathed her share of the immovable property (which had in the meantime been subdivided) to the appellant (Rhode). Rhode was Lettie's child from a previous marriage. The rights of occupation of the whole property, and later the two subdivided parts of the property, were registered by the local Town Council in the name of Evelyn.

A dispute arose as to who exactly was entitled to what portion of the property. Suffice it to say for present purposes that it was common cause that the rights of the persons involved, and also the question as to the correctness of the transitional council's decision to register it in Evelyn's name, depended entirely on whether Attie and Lettie's will massed their estates.

Conradie JA (Mpati AP, Cameron, Mthiyane and Brand JJA concurring) held that for massing it was necessary that the one testator disposed of both his own estate (or a part of it), and the estate (or a part of it) of the other testator. The mere acceptance of the benefits from a mutual will (here Lettie's acceptance of the usufruct created in the will) could not in itself bring about massing. If, in the first place, there was no massing, any act of the survivor (Lettie) which would otherwise point to adiation (acceptance of the terms of the will) was meaningless.

There is a general presumption against the massing of estates and the provisions of Attie and Lettie's will did not rebut this presumption.

The original will therefore had to be interpreted as two wills and the appeal was upheld with costs.

Republished with permission from SADJ


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