What is a Joint Will?

Essentially a joint Will is simply the instructions of two (or more) persons recorded for the sake of convenience in one combined document. It does not create a binding contract between the makers: either or both parties can separately cancel or amend his or her “part” of the Will, without the consent – or even the knowledge – of the other party. The normal rules relating to Wills apply: the Will must be signed by each party in the presence of two witnesses. The two Will makers need however not sign the document in each other’s presence; so long as two witnesses witness and attest the signing of each of the two parties, the joint Will is valid.

Who can make a Joint Will?

Whilst joint Wills are commonly executed by married couples, any two or more people may make a joint Will, whether they are related or not. Thus three business partners, three siblings, parents and any number of their children, or even complete strangers could make a joint

Will! So long as the formalities relating to the execution of a Will are complied with, such a Will would be valid.

Is a Joint Will binding on the survivor?

As a joint Will in itself not a binding agreement between the makers, the general rule is that the survivor can accept benefits given by the first-dying in the joint Will and then subsequently amend or cancel his or her “portion” of the joint Will, or make a new Will as he or she sees fit. The exception to this rule is if the parties intended in the joint Will to “mass” their estates (i.e. to irrevocably combine and dispose of their combined estate on an agreed basis), and the survivor accepted the benefits of such massing on the death of the first-dying. If this happens then the survivor is bound by the terms of the massing and the massed estate will devolve as determined in the original joint Will. But it is important to note that even if parties mass their estates in a Will, the survivor may on the death of the first-dying, repudiate the massing and in that way avoid being bound by the “agreed” terms of massing.

Pitfalls of a Joint Will

There are a few issues to watch out for when executing a joint Will. However, these pitfalls can be overcome and often the convenience of executing a Will together will outweigh the potential pitfalls.

The first potential pitfall arises from a common construction of a joint Will. The parties often declare that if one of them survives the other for a stated period of time e.g. 30 days, then the survivor will inherit the first-dying’s estate, but if they die together then each of their estates will devolve on others, such as children. The problem is that unless worded carefully, if the survivor survives the first-dying by more than the stated number of days but then dies some time after that, one could find that the original joint Will makes no provision as to how the survivor’s estate must devolve.

This has the unintended consequence of leaving the survivor dying “intestate” i.e. as though he or she left no Will.

The other problem is a practical one: on the death of the first-dying the original joint Will is lodged with the office of the Master of the High Court having jurisdiction, who retains the document permanently. If when the survivor dies, it is found that a different Master’s office has jurisdiction (e.g. the survivor had relocated to a different part of South Africa), then there will be delays in the filing of the estate of the survivor as a Master sealed copy of the original joint Will has to be obtained from the first Master’s office before the winding-up of the survivor’s estate can commence.

As with the making of any Will, makers of a joint Will are advised to obtain specialist advice when planning and executing their parting document.