Die praktiese implikasie van adiasie of repudiasie : ‘n gevallestudie

Abstract

Whether to adiate or repudiate is a dilemma with which a surviving spouse is often confronted. Recently a testatrix sought legal advice in respect of a will with essentially the following terms : The testator and testatrix were married in community of property to each other; They executed a joint will in which their estates were massed; The will determined that should the testatrix be the first dying the testator shall inherit the entire massed estate; Should the testator predecease the testatrix, the entire massed estate shall devolve upon the children of the testator and testatrix, born from the marriage. The testator died and the testatrix is now faced with the question whether to adiate or to repudiate. If the testatrix repudiates she retains her one half share of the joint estate. Should the testatrix however adiate, she will be left destitute. The question arises whether election and massing, as set out in the common law and Section 37 of the Administration of Estates Act 66 of 1965 in fact apply to this case study. The conclusion is drawn that it does not apply. The will effectively disinherits the surviving spouse which will cannot be amended by the court. The court has no general discretionary power to modify or supplement rights under a will or to authorise the property of the testator to be dealt with in a different manner than prescribed in the will. Whether the clause in terms whereof the testatrix is disinherited is contra bonos mores is still open for speculation. I am of the opinion that the meaning of the term contra bones mores should be extended to include - against public interest. Should the testatrix adiate it would constitute a restriction of her testamentary powers. This effect is in any event brought about where estates have been massed and the surviving spouse then adiates, which effect is not in line with the general view that a testator or testatrix's testamentary powers should 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 in solving the problem were explored, such as a relinquishment by the children of the testator and testatrix of their claims to the joint estate, the uis accresendi, prescription, as well as a possible action in the Constitutional Court, on the grounds of the will being discriminatory towards the testatrix. 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 reported cases in which this Act has been tested or interpreted. Section 35(3) of the Constitution of the Republic of south Africa 100 of 1993 might assist the testatrix in proving that she is needy and should receive "maintenance- from her deceased husband's estate.