WORLDWIDE AND OVERSEAS WILLS
All packed up and ready to emigrate?
When buying a property abroad and drawing up a Will, the clever thing to do is to make use of Estate specialists, like Capital Legacy.
One should bear in mind that there are different sets of rules governing heirship in different countries. Here are a few FAQs to help you along the way:
WHAT IS FREEDOM OF TESTATION
Freedom of testation is a law that allows a Testator (or Testatrix) to bequeath assets in a Will as they please. South Africa observes freedom of testation, so a person can leave his or her assets to whoever they like.
WHAT IS FORCED HEIRSHIP
This a set of rules which restrict the Testator’s freedom to distribute his/her Estate to protect certain heirs, such as a spouse or child. In most countries where this system applies, a portion of the Estate is subject to the laws of forced heirship while the balance is left to the Testator’s discretion.
DOES MY SA WILL COVER MY UK ASSETS?
A Worldwide Will could come in handy if you live in South Africa but have assets in a country with similar heirship laws to our own, such as the UK. Like South Africa, the UK has freedom of testation.
It’s important to have appropriate Wills drafted to suitably protect your Estate and heirs. You can either have multiple Wills for each jurisdiction that you have assets in, or you can draft a Worldwide Will to cover assets in different countries that have the same inheritance laws as SA.
While certain countries follow the same rights of inheritance that South Africa recognises, there are others that are vastly different. A Worldwide Will or an offshore Will may protect your Estate if you’re intending to relocate or if you’re thinking of buying property abroad.
But it always better to speak to a specialist in testation.
WHAT IS ACCIDENTAL (IMPLIED OR TACIT) REVOCATION CONCERNING WILLS?
The simplest method of revoking a Will is by validly executing a further Will or Codicil. A clear way of doing this is by including a revocation clause in the later Will. An example is: “I revoke all former Wills and Testamentary dispositions and declare this to be my Last Will and Testament”. This simple clause will revoke all previous Wills and Codicils.
But this clause might present problems when acquiring foreign assets in countries which don’t have testamentary freedom. Testamentary freedom, as we have in South Africa, simply means that the Testator may leave his Estate to whomever he wants to. In some countries, for example France, the principle of forced heirship applies. Under the laws of forced heirship children are prioritised above spouses.
Why should this be a problem? Well, let us assume that a South African buys a property in France. He then draws up another Last Will and Testament to leave the property in France and his properties in South Africa to his wife. But the property in France might end up going to his children, because of France’s laws of forced heirship which prioritise children above spouses.
How could this happen? Simply because the Last Will and Testament is subjected to the laws of the country where the asset is situated.
That part of the Testator’s Will is thus accidentally revoked.
HOW WOULD THE PRINCIPLE OF SURVIVORSHIP AFFECT ME IF I HAVE A JOINT FOREIGN BANK ACCOUNT OR OWN A PROPERTY OVERSEAS JOINTLY?
Care should be taken when preparing a Will for a South African who jointly owns a foreign bank account or investment account. If one joint owner passes away, the deceased’s share might not pass through their Estate and may pass automatically to the surviving joint owner. This is known as the Principle of Survivorship. A caveat though, the Principle of Survivorship operates in the UK, Ireland, Jersey, Guernsey, the Isle of Man, and many other countries, but not in all of them. An example of the principle is that a husband who jointly has a bank account with his brother in the Isle of Man, should not try and make a gift in his Will of his share in the bank account to his wife or any other person than his brother.
In circumstances where two or more people own a property jointly, the asset is held 100 per cent in all names and this is called joint tenancy. When one of the owners passes away, the percentage holding of the other owner/owners increases. This differs from owning assets in tenancy in common, which has no right of survivorship and may be dealt with in terms of the Testator’s Last Will and Testament.
WHAT ARE THE IMPLICATIONS OF THE EUROPEAN SUCCESSION REGULATION NO. 650/2012 (BRUSSELS IV) CONCERNING ESTATES?
Many countries in Europe, such as France, Spain, Germany, and Italy restrict testamentary freedom through their forced heirship rules, which can potentially provide statutory or fixed shares to certain family members.
This means that in some cases, a South African individual with assets in certain European countries may be restricted as to whom they can leave their assets to. However, where a South African individual owns assets located in the European Union (the UK, Ireland, and Denmark excluded), the European Succession Regulation No. 650/2012 (also known as Brussels IV) presents a very useful planning opportunity.
Brussels IV enables an individual to elect for the law of their nationality to apply to the succession of their assets. This can, potentially, be a convenient way to avoid the forced heirship rules and, for a South African national, ensure that South African law applies to the succession of the European assets.
Both the EU citizen and the non-EU citizen may choose the law of his country or nationality to apply to his Estate. The default position is that the governing law of the state in which the deceased was habitually resident at his death will be utilised for the distribution of the deceased’s Estate.
Brussels IV applies to deaths on or after 17 August 2015.
The signatory states are Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Spain, Slovakia, Slovenia, and Sweden.
WHICH TYPE OF WILL IS BEST IF I OWN FIXED PROPERTY IN OTHER COUNTRIES?
Generally, a foreign Will is advisable if you own immovable property overseas. Fixed property will need to be transferred according to the laws of the said country so you will need to ensure that all formalities are complied with. Also, some countries only recognise a locally drafted will when it comes to disposing of property and your South African Will may, therefore, be disregarded. This is one of the reasons why the European Succession Regulation No. 650/2012 (Brussels IV) is such a groundbreaking agreement.
So, if you’re considering purchasing a property abroad or have emigration in mind, remember to consider the implications on your Will. Chat to Capital Legacy for expert advice on securing your offshore assets.
This article was first published at https://www.capitallegacy.co.za/worldwide-and-overseas-wills/
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