Abstract:
Recently a testatrix sought legal advice in respect of a will with the following terms: the testator and testatrix were married in community of property; the executed a joint will in which their estates were joined; the will determined that, should the testatrix die first, the testator would inherit the entire joint estate, but should the testator predecease the testatrix, the entire estate would devolve upon the children of the marriage. The testator died and the testatrix is faced with the problem of whether to adiate or repudiate. If the testatrix repudiates, she retains her one half of the joint estate. If, however, she adiates, she will be left destitute. The question arises as to whether election and massing apply to this case study, and it is concluded that it does not apply. The will effectively disinherits the surviving spouse, and this will cannot be amended by the court. Whether the clause in terms whereof the testatrix is disinherited is contra bonos mores, is open to speculation. Should the testatrix adiate, it will constitute a restriction of her testamentary powers. This effect is not in line with the general view that a testator's or testatrix's testamentary powers be unrestricted. Repudiation by the testatrix will undoubtedly revoke the will as far as her one half share of the joint estate is concerned, but will still be operative in regard to the testator's one half share of the joint estate. Various avenues were explored. The only viable solution would be for the testatrix to repudiate and to bring a claim in terms of the Maintenance of Surviving Spouses 97 of 1990. The problem with such a claim is that there are no cases in which this Act has been tested or interpreted.
