A will is a cardinal document drawn up for your individual needs, but make sure you have the correct will to cover your foreign assets as well.
Your Will gives instructions to the appointed Executor about how you want your Estate to be distributed after your death. In other words, who will inherit what. But what if you live in South Africa and own property in another country or have other foreign assets? You will need to consider each country's relevant jurisdiction in terms of the laws on estates and how they apply tax, as not all countries have the same laws.
Local will and testament
A local will refers to a will drawn up in the country where you live, in our case South Africa, and it gives instructions on what should happen to the assets you have in South Africa.
You will often find a clause within a local will stating that all other wills are to be disregarded (revoked) and that this will is to be considered the only legal and valid will.
This is generally fine, unless you have international assets that you have not provided for in this will and for which you may have drafted a will in another jurisdiction.
Worldwide will and testament
When you add in your will what should happen to the international assets you may have, this is known as a global will, but it is important to note that you can only have a global will to cover assets in countries with the same laws when it comes to your estate. A global will essentially means that you will not need multiple wills, but rather one will that contains the relevant clauses dealing with your offshore assets.
In South Africa we have freedom of will, which means that, apart from certain legislation that children and
spouses' protection and provision assured, you can pass your legacy on to whomever you through you
choose will.
South Africa observes common law in relation to inheritance and this applies to countries influenced by British common law. This applies in areas such as the United Kingdom, Australia, New Zealand and parts of Canada, India and Singapore. Assets you may in these provinces
own, will form part of your Worldwide Testament.
Foreign Will and Testament
If you own assets in a country that does not have the same inheritance laws as SA, you will need to draw up a local will for your local assets and a foreign will for the assets in the country that has different inheritance laws.
For example, suppose you have assets in countries like France, Spain, Italy, Portugal or certain parts of Canada, where Civil Law is followed: there are very specific laws regarding inheritance, and a forced heir applies. This means that you do not have much control over who will inherit the assets you have within these jurisdictions and as such require a separate foreign will dealing with this.
When you have assets in countries that adhere to Shari'ah law, such as parts of India, Singapore and the United Arab Emirates, the estate you leave behind may be subject to Islamic Law, based on the Koran. Dubai is the exception to this rule due to the Dubai International Financial Centre, which has its own independent, internationally regulated regulator and judicial system and common law framework. In these jurisdictions, your Shari'ah-compliant will, which will specify which school of thought you follow as a Muslim, will ensure that when the time comes for your estate to be administered, it is administered according to your religious beliefs.
A will can be tailored to the needs of each individual. None of this should be intimidating, we will assess your wishes and estate needs and advise you on the best route to take!
Do you have questions about specific needs?
Book your free consultation.
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