SYDNEY CHARLES ALFRED ECKLEY
Fiduciary Advisor

It should come as no surprise that an unambiguous and properly drafted will is always an essential part of estate planning in South Africa but with each passing day it becomes ever more prevalent for clients to approach advisors with estate planning needs pertaining to assets situated in foreign jurisdictions.

Certain questions then naturally arise. Is a South African will sufficient for worldwide assets? Should I have a separate offshore will for each foreign jurisdiction in which I hold assets or one comprehensive foreign will regulating my entire foreign estate? Is it possible to have one worldwide will to deal with my entire earthly estate?

Needless to say, but nonetheless said to emphasise my conclusion, it falls outside the scope of this opinion piece to provide a comprehensive overview of all types of wills for all types of assets in all types of jurisdictions. Quite frankly, I do not believe it to be possible even if multiple academic textbooks are utilised. I can simply attempt to provide certain fundamental considerations which should influence advice and motivate the necessity of approaching an expert in South Africa on this issue and thereafter if so advised, an expert in each jurisdiction where assets are held.

When considering the type of will to be used when foreign assets are in play, a good place to start would be to look at the kind of offshore assets involved and the jurisdiction in which the assets are situated. For example, cash or unit trusts in the right jurisdiction might easily be administered in terms of a worldwide will or a South African will recognised by that jurisdiction. Then again immovable property or shares held in personal name in the wrong jurisdiction can potentially lead to delays and avoidable costs being incurred by the estate and therefore one or multiple offshore wills should be recommended.

In short, sometimes one will could be sufficient and in other cases it will not be. There is no hard and fast rule which can be proposed to clarify this matter, but what is transparently clear, is that no advisor can be an expert in every jurisdiction on earth and consequently, be capable of drafting valid and executable wills in every such jurisdiction.

The issue of multiple wills can quickly become quite complicated and a multitude of considerations will impact the correct advice. You must take cognisance of the fact that your client might have assets in a jurisdiction with forced heirship rules or a so-called principle of survivorship. The danger of accidental revocation by not limiting your local will to the devolution of local assets or your foreign will to the devolution of the relevant foreign assets will without question have disastrous consequences and must therefore obviously be kept in mind. Language- and formal requirements always walk hand in hand with a valid and executable will, be it local or offshore. A comprehensive understanding of the tax implications of bequests in another jurisdiction is vitally important.

On the other hand, one worldwide will can be less costly and quicker to administer. It can obviously also simplify the process of amendment of a succession plan. It can provide certainty and control to the client and his/her loved ones in life and after death, as the navigation of legal hurdles and red tape in multiple jurisdictions is no one’s idea of fun and could understandably become quite laborious for already grieving and emotional heirs.

Therefore, and as should by now have become evident, it is not easy to give concrete advice on this matter without due regard for the unique circumstances of each client but in essence, my advice could be summarised as follows:

1. South African experts are undeniably instrumental when it comes to South African estate planning, but they are usually only experts on a few other jurisdictions in which they frequently operate. They will most probably be able to assist with advice and the correct choice of will when assets are situated within one of these jurisdictions.

2. If not, every South African expert should at the very least be able to ascertain when a South African will, multiple offshore wills or a worldwide will could suffice or whether experts should rather be consulted in foreign jurisdictions.

3. The Hague Conference on Private International Law which establishes validity rules of testamentary writings between signatory states, should always be considered together with:

3.1. The types of offshore assets and the internal policies and procedures of any organisation controlling such offshore assets (if applicable). For example, the rules of the offshore bank in which your client’s money is kept regarding death and succession;

3.2. The client’s domicile and residence;

3.3. The reporting obligations, matrimonial property regimes, and tax- and succession laws of the foreign jurisdictions; and

3.4. Prohibitions or limitations on the freedom of testation in foreign jurisdictions.

Ultimately, our clients’ needs are paramount, and referral should always be done if after due consideration we do not possess the required expertise. Furthermore, and although by no means extensive, the above summary might serve as a guideline for further research.