Is A Separate Will Necessary For A Property You own Overseas?
Category Legal Information
“I recently bought a property in France. My wife and I live and work in South Africa, but we hope to spend at least one month of the year in France. We are married out of community of property and we have Wills in South Africa. The property in France and its contents are my only offshore assets. Should I amend my Will in South Africa to include my assets in France?”
It is becoming common for people to have assets in different countries. There are many South Africans who have investments and/or property in other countries. Similarly, there are many non-residents of South Africa who own property here and also have assets elsewhere. Although it is possible to have one Will which deals with your worldwide assets, you should consider having a separate Will for each country in which you have assets.
To determine whether a separate Will, also known as an offshore Will or a concurrent Will, is required, one will usually consider the type of offshore assets and also where these assets are located. A separate Will is almost always recommended if immovable property is owned in another country.
Each country has its own laws relating to the making of a valid Will. By drafting separate Wills you can ensure that each Will complies with the laws of the country in which it was drafted. It is unlikely that a local attorney will have knowledge of the legal requirements for a valid Will in every country where foreign assets are located, so it is advisable to seek expert local advice regarding the applicable laws and estate planning requirements.
For example, in some countries there are inheritance laws that override the intentions of the deceased – also known as forced heirship - which essentially limits the ability of the maker of the Will to bequeath assets freely, requiring that a certain portion of the deceased’s estate must be allocated to certain specified relatives. And in some countries the concept of a trust, which is often used to provide for minor beneficiaries in Wills made in South Africa, may not be recognised.
It is therefore advisable to have a separate Will drawn for your assets in France by an attorney who is familiar with the laws of France. If a separate Will is indeed made, great care must be taken to ensure that the Will is properly drafted and signed and that it states clearly that it deals only with the assets in France. Your South African Will should therefore be amended to include wording such as “This Will deals with my assets in the Republic of South Africa only”.
A Will will usually revoke former Wills so, if concurrent Wills are made, it must be clear that each Will does not revoke another concurrent Will. It is particularly important to keep this in mind if the Wills are made in different countries with the assistance of different advisors. Your South African Will should therefore be amended to include wording such as “This Will revokes all previous Wills made by me in respect of my assets in the Republic of South Africa”. This will ensure that your South African Will does not revoke your French Will.
If you have a Will for your South African assets and another Will for your assets in France, your deceased estate will be administered, simultaneously, in accordance with South African law and the laws of France. Making concurrent Wills may be a somewhat complicated process, but it will avoid many difficulties and unintended consequences in the distribution of your estate in different countries and thereby avoid or reduce costs which would otherwise apply.
Author: Jan van Zyl / Miller Bosman Le Roux Attorneys