Statistics have shown that in 2020, the total number of South Africans that emigrated was roughly 915000, and many purchased property or business assets in other countries in the hopes of securing a preferential visa or residential status in that territory should they wish to emigrate. The question arises whether a foreign will is required when owning any international assets.
A South African will is drawn up to make provision for the distribution of your assets located in this country. Your South African will also cover your international assets, unless stated otherwise. But it is important to know when a foreign will is required for your international assets, depending on what type of assets you own and where they are located.
A foreign will is recommended when owning fixed property abroad, especially to make sure that it is transferred in accordance with the relevant laws and regulations of that country. There are different laws regarding succession in each country, so it's important to keep this in mind when drafting a foreign will. In some countries, your South African drafted will is deemed valid and in other countries only local wills, are accepted.
In South Africa having freedom of testation means that you are allowed to bequeath your assets according to your own wishes. Having a foreign will for your assets located in a country sharing similar laws pertaining to succession, for example, England is very convenient as they also share freedom of testation. Other countries, such as France, Germany and Italy, have their own specific forced heirship, which means that a person is restricted from distributing their assets as they prefer in order to protect certain beneficiaries such as a spouse, children or other relatives. This system implies that a part of your assets will be distributed according to the laws of heirship, and the residue will be left for your own discretion. You will therefore not have much control over deciding the distribution of your inheritance, and it is advantageous to draft a foreign will apply to that country's relevant jurisdiction.
The European Succession Regulation No 650/2012 (Also known as Brussels IV) can be very useful to South Africans who own assets in the European Union. The aim is to make the legalities regarding multiple wills and jurisdictions easier for any testator owning assets in the European Union.
The default position is that the law of the state in which the deceased was habitually resident at the time of his death will be used to distribute the deceased's estate. Both the European Union citizen and the non-European citizen may choose the law of his country or nationality to apply to his estate.
A South African may, therefore, specify in his will that South African law applies to his assets located in a European Union state, avoiding interpretive uncertainty, and avoiding unintended consequences such as forced heirship laws and potential problematic provisions applicable in that jurisdiction.
Whether you are contemplating purchasing property abroad or considering emigration, it is important to consider the ramifications of your will and what your needs are.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.