It is possibly best to execute a separate will in each jurisdiction where one’s estate may have to be administered. (Flickr)
In an increasingly globalised world, it is not uncommon for people to own assets in more than one country. Countries have different laws of succession and the requirements for a valid Will may vary from country to country. This may create problems if one’s estate affairs are not in order.
The issue of various wills across multiple jurisdictions came into play in the recent judgment of Anderson and Another v Du Plessis N.O and Others.
In 2001, Harold John Anderson and Karin Renate Anderson executed a joint will (the 2001 will) in Kassel, Germany. Karin died in 2002. In 2003 the district court of Kassel found the 2001 will to be the effective joint will of Harold and Karin. Harold was the sole heir in the Karin’s estate.
Although the full details of where all the assets pertaining to the 2001 will were situated is not clear, in the later legal proceedings in South Africa there were references to assets in Germany, Italy and South Africa.
Harold then married again. In 2018, he executed a new will (2018 will) in terms of which his new wife was the sole beneficiary.
He then executed another will in 2021 (2021 will) wherein he dealt with assets in the United Kingdom and Channel Islands. In terms of the 2021 will, his new wife and the two children from his marriage to Karin were named as beneficiaries. The 2021 will did not form part of the dispute before the court.
Harold died in 2023.
Harold and Karin’s children instituted legal proceedings in the high court. They argued that, in terms of the 2001 will, massing had occurred due to their late parents’ consolidation of their property into a single unit. They also argued that adiation had occurred when their father had accepted the benefits under the 2001 will. They requested the court to order the Master of the High Court to accept the 2001 will as the last will of their father in respect of his South African assets in so far as it related to assets which had formed part of the massed estate under the 2001 will.
The respondents, which included Harold’s later spouse, fluctuated in their grounds for opposing the application. They mainly argued that even though they accepted the validity of the 2001 will under German law, they disputed that the 2001 will could be enforced under South African law. They did not dispute that after Karin’s death massing and adiation had occurred and that Harold had inherited the massed estate.
The court dealt with some procedural aspects and then referred to section 3bis(1)(a) of the Wills Act, which stipulates that a will shall:
“(a) not be invalid merely by reason of the form thereof, if such form complies with the internal law of the state or territory
(i) in which the will was executed;
(ii) in which the testator was, at the time of the execution of the will or at the time of his death, domiciled or habitually resident; or
(iii) of which the testator was, at the time of the execution of the will or at the time of his death, a citizen”
The court stated that the effect of section 3bis is that a will would be valid under South African law if the will complies with the formalities of the country in which the will was made, in this case Germany, irrespective of whether the will complies with the formalities for validity of the country where the assets are situated, in this case relating to assets situated in South Africa.
The court therefore found that the 2001 will was valid and binding in South Africa because of the district court of Kassel’s decision that resulted in the requirements of section 3bis of the Act being met.
It is common for married couples to execute joint wills. It is also possible for two people who are not married to execute a joint will.
Most joint wills are also mutual wills. A mutual will is a joint will wherein the parties thereto make bequests to each other. Any party to a joint or mutual will may at any time, even without the other party’s knowledge or consent, execute a new will and revoke the previous joint or mutual will. There are however consequences for the surviving party to a mutual will in the case of massing.
Massing occurs when two or more persons in their mutual will consolidate their separate estate assets into a consolidated unit, which is then bequeathed as a consolidated unit in terms of the mutual will.
A couple who is married in community of property and who wishes to effect massing may include the following clause in their mutual will: “We hereby mass our joint community estate and bequeath the whole of our massed joint estate in equal shares to our children, namely xxxx and xxxx, subject to a life-long usufruct in favour of the survivor of us until the survivor’s death.”
In this case, upon the death of the first-dying spouse, the surviving spouse will have a choice of either adiating (accepting the benefits) under the will or repudiating (rejecting the benefits of) the will. Should the surviving spouse adiate, he or she will become entitled to a usufruct over the whole of the property in the joint estate. Should the surviving spouse repudiate, he or she will become entitled to his or half share in the joint estate and the children will forthwith become entitled to the first-dying spouse’s half share in the joint estate.
In the event of the surviving spouse adiating under the will, he or she will not be allowed to later vary or revoke the terms thereof. The surviving spouse would therefore be restricted in his or her manner of dealing with the assets in existence at the time of death of the first-dying spouse.
In this case the court found that Harold and Karin had consolidated their separate estates into a single unit in their 2001 will, thereby massing their estates. The court further found that Harold had then elected to receive benefits in terms of the 2001 will after Karin’s death, thereby adiating under the 2001 will. Harold was accordingly not allowed to deal with his portion of the massed estate in a manner contrary to the provisions of the 2001 will.
The court ordered that the 2001 will was to be accepted by the Master. It further ordered that the assets in Harold’s estate, in so far as it related to South African assets which had formed part of or had been derived from the massed estate under the 2001 will at the time of Karin’s death, are to be distributed in terms of the 2001 will. As far as Harold had acquired South African assets which had not formed part of or had not been derived from the massed estate in terms of the 2001 will, the court ordered that such assets were to be distributed in terms of the 2018 will.
As can be seen from the above discussion, having one will that applies to multiple jurisdictions may be problematic.
Countries have different laws relating to the validity of wills, the recognition of foreign wills, how the applicable matrimonial property regime influences succession, forced heirship, testamentary freedom and succession rules. The estate administration procedure will differ from country to country.
A practical way to go about planning one’s estate across various jurisdictions would be to obtain advice on the applicable laws of succession and to execute a separate will in each respective jurisdiction where one’s estate may have to be administered.
Specific care must be taken that each jurisdiction’s will complies with that jurisdiction’s formalities for validity, deals only with the assets in that particular jurisdiction and only revokes previous wills relating to assets situated in that specific jurisdiction.
It is imperative that a professional or professionals be consulted when dealing with estate planning across jurisdictions.
Karel Kogler is a senior associate at Herold Gie Attorneys.