Difference between Offshore and World-Wide Wills:

An Off-Shore Will is applicable to international assets that are located in a country that does not share the same laws of succession and inheritance as South Africa. You must have a separate Will for each, specific asset.

A World-Wide Will is applicable to international assets that are based in a country that shares the same laws of succession and inheritance as South Africa. You may have one Will that includes all the assets – your local assets and international assets.

If you have an asset that is based in a country with different laws to South Africa, you are supposed to have an Off-Shore Will to deal with that specific asset. If you do not have an Off-Shore Will, your South African Will cannot be applied to this asset. Your wishes in your Will concerning this asset will be disregarded and the laws of the country that your asset is located in will apply by default.

An example:

You bought a holiday home in Portugal. This holiday home is included in your South African Will, but you did not make an Off-Shore Will. If in your South African Will, you requested that upon your death, this holiday home be given to your best friend as their inheritance from you. However, Portugal does not have the same laws of inheritance as South Africa. Then, upon your death, this asset will be dealt with in terms of the default laws of Portugal and not South Africa. This means that your best friend will not inherit the holiday home. Your wishes in terms of this asset will be disregarded. The holiday home will be inherited by a closer heir like your children or spouse as per the laws of Portugal.

It is important to have a separate Will for your international assets because each country has different requirements for valid Wills and for how your asset may be inherited.

Having a separate Will for your assets allows your Will to be valid in the country where your asset is located. You will not encounter issues of validity and legality. Your wishes will be considered and followed if the laws of the country are adhered to. This protects your asset. It also gives you an understanding of what will happen to your asset when you pass on and allow you the opportunity to make the decisions you need to make now. If you do not, your precise wishes may not be carried out by virtue of the laws of the country your asset is in.  

Yes. You should have a separate Will for each asset in another country unless one of those countries share the same laws as South Africa. If an asset is in a country with the same laws as South Africa, you may include it in one Will. But you have five assets in five different countries, each with different laws, you should ideally have a Will to deal with each asset individually.

South African laws allows a testator freedom of testation. This means you have the sole power to decide who inherits and what they inherit from your estate. South African laws of inheritance apply when a person dies without leaving a Will. The estate is then distributed equally between all those that qualify as heirs as per our laws of intestate succession. Other countries practice forced heirship and principles of survivorship. 

Forced heirship means that a testator does not have a choice about who receives an inheritance from his / her estate. Their natural heirs will always inherit the estate upon death. This is based on civil law and not common law as we observe in South Africa. The principle of forced heirship does not apply to us because testators in South Africa have freedom of testation. This means that in our law, a testator can choose whether or not his natural heirs such as their children, must inherit or whether he would like someone completely different to receive his estate e.g., a friend.

Having multiple Wills means having a separate off-shore Will for each international asset, that will deal with each asset separately. It is easier for the person interpretating your Will to do so without experiencing delays. When opting for the usage of multiple Wills, make sure that clauses you have in your Will do not affect the other Wills or subtract any meaning from it. Ensure that laws do not transgress each other and keep a careful eye on laws that are changing in other countries so that you can update your respective Wills.  

An example of a clause that must be carefully drafted is a revocation clause. In South Africa, we always include a revocation clause in a Will. This clause revokes any Will you may have drafted prior to the current Will you are signing. It declares any other Will or Codicil as null and void. It gives protection to your current Will, in the event of your family members having both Wills in their possession and not knowing which Will applies; the revocation clause will help them to identify which is your most recent Will and the one that is applicable to your estate.

However, when you have Multiple Wills, your revocation clause must revoke all other Wills except your Off-shore Wills. There must be a specific exclusion that the revocation will not apply to the Off-Shore Wills so that your Off-Shore Wills are all still legal and binding upon your asset.

Yes. South Africa and Canada both observe common law, freedom of testation and have similar inheritance laws. This is applicable to all parts of Canada except Quebec. Your South African Will can accommodate all international assets located in countries that share our inheritance laws just like Canada. Always take note of the inheritance laws that govern the country where your assets are located in order to decide whether your South African Will or Worldwide Will can accommodate it.

However, when you have Multiple Wills, your revocation clause must revoke all other Wills except your Off-shore Wills. There must be a specific exclusion that the revocation will not apply to the Off-Shore Wills so that your Off-Shore Wills are all still legal and binding upon your asset.

A revocation clause is a clause in a Will that declares all other Wills or Codicils made before the current Will as null and void. It is a measure of protection so that your loved ones know which Will applies to your estate if you have made more than one Will during your lifetime. However, when offshore Wills are made, your revocation clause must not include your Offshore Will.

You should make a revocation clause and specifically state that it does not apply to your Offshore Will/s. If you do not take caution, it may render the Offshore Will null and void. Your assets will then devolve according to the natural laws of inheritance of the country it is located in rather than your Will. 

If your revocation clause has rendered your Offshore Will null and void, your asset will devolve according to the natural inheritance laws of the country your asset is located in. For example, if your Offshore Will stipulates that your asset must be inherited by your favourite Aunt, but the asset is located in Portugal, a country that does not observe our laws but observes civil law and forced heirship, your wish will be disregarded and your Aunt will not inherit. Instead, the asset will pass on to someone who is closer to you in relation, like your children or siblings.

The principle of survivorship is upheld in certain countries that observe civil law. This principle applies to people who jointly own property or assets. Upon the death of one of the joint owners, their share of the asset / property will not devolve to whomever they choose. Instead, it will automatically fall into the estate of those who were co-owners with the deceased. The joint-owners are deemed the survivors of the deceased as far as the asset or property is concerned. If your asset is in a country that observes this principle, you will not be able to bequeath your share to anyone else other than those who are joint owners with you. 

The Brussels IV law was passed for those countries that form part of the European Union. It aims to alleviate the burdens the laws of natural inheritance have placed on testators by declaring that if you have assets in any country that forms part of the European Union, you have a discretion whether or not you want the national laws of your country to apply or the laws of the country in question. For example, if you have an asset in Belgium, which forms part of the European Union, you may now choose whether your national law will apply to the asset or whether the laws of Belgium must apply. This must be clearly set out in your Will.