Estate Planning and Wills Across Borders: Sometimes a Quagmire in the Making

Authors

DOI:

https://doi.org/10.17159/1727-3781/2021/v24i0a8396

Keywords:

Wills, testamentary trusts, international estate planning, private international law, Regulation on Succession, Regulation on Matrimonial Property, section 3bis of the Wills Act

Abstract

In this article a synoptic evaluation is made in respect of the estate planning and wills of South African nationals working, investing or living in foreign jurisdictions, in the broader context of globalisation and internationalisation. Estate planners and testators may inadvertently leave family members in a financially vulnerable position or diminish family assets due to a non-appreciation of international private law. The importance of international wills, the role of testamentary trusts, and the potential impact and reciprocity of international instruments are considered. The most applicable Hague Conventions and the EU Succession and Matrimonial Property Regulations are discussed in an attempt to give an overview of the current legal position. In discussing the role of international private law, its practical application is illustrated by way of reference to a few jurisdictions popular among South Africans with multi-jurisdictional estates, namely Malta, Portugal, the Netherlands and the United Kingdom. Although there may be more popular emigration jurisdictions amongst South Africans, this contribution focusses on the South African who lives, works and plays in a European context, without necessarily cutting his or her ties with the homeland. Not all attempts to harmonise wills, deceased estates, succession and matrimonial property regimes have been met with the same levels of enthusiasm by the international community. Contributing hereto may be the fact that fiduciary law deals with sensitive and very personal aspects of individuals and is closely linked to the different worldviews of communities. It is argued that not only fiduciary advisers and will drafters, but also attorneys and notaries involved with prenuptial agreements, should be proficient in the workings and implications of the applicable international instruments. Lastly, an argument is made for more pragmatic and commercial style thinking in the arena of fiduciary law.

Downloads

Download data is not yet available.

Metrics

Metrics Loading ...

References

Bibliography

Literature

Basedow J and Dutta A "Comments on the European Commission's Proposal for a Regulation of the European Parliament and of the Council on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and Authentic Instruments in Matters of Succession and the Creation of a European Certificate of Succession" 2010 Rabel Journal 522-720

Bost J "Nothing Certain about Death and Taxes (and Inheritance): European Union Regulation of Cross-Border Successions" 2013 Emory Int'l L Rev 1145-1174

Braun A "Will-Substitutes in England and Wales" in Braun A and Röthel A (eds) Passing Wealth on Death: Will-Substitutes in Comparative Perspective (Hart Oxford 2016) 51-77

Coutinho FP and Piçarra N "Portugal: The Impact of European Integration and the Economic Crisis on the Identity of the Constitution" in Albi A and Bardutzky S (eds) National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law (TMC Asser The Hague 2019) 591-639

Dutta A "Succession and Wills in the Conflict of Laws on the Eve of Europeanisation" 2009 Rabel Journal 547-606

Ernst & Young Worldwide Estate and Inheritance Tax Guide (Ernst & Young London 2018)

European Union Study on the Law Applicable to Companies: Final Report (European Union Luxembourg 2016)

Faulconbridge JR and Beaverstock JV "Globalization: Interconnected Worlds" in Clifford NJ (ed) Key Concepts in Geography (Thousand Oaks London 2008) 331-343

Filesia KR "De Rechtskeuze in het Interregionaal Erfrecht Versus de Legitieme Portie (1)" 7 Maart 2020 WPNR 184-188

Geçer AE A Practical Matter Test: The Concept of Beneficial Ownership in International Tax Law (Lambert Academic Publishing Chisinau 2014)

Gold AS and Miller PB Philosophical Foundations of Fiduciary Law (Oxford University Press Oxford 2016)

Greene DS Trusts, Foundations and Fiduciary Structures: Portugal 2nd ed (euroFinesco Lisbon 2018)

Hansmann H and Mattei U "The Functions of Trust Law: A Comparative Legal and Economic Analysis" 1998 NYU L Rev 434-479

Hayton DJ "Determination of the Objectively Applicable Law Governing Succession to Deceased Estates" 2008 DNotl, Les Successions Internationales dans I'UE 359-371

Hayton DJ "Reflections on the Hague Trusts Convention after 30 Years" 2016 J Priv Int L 1-25

Hayton DJ and Underhill A Law Relating to Trusts and Trustees 15th ed (Butterworths London 1995)

Hayton DJ et al Law of Trusts and Trustees 17th ed (Butterworths London 2007)

Hirsch AJ "Freedom of Testation / Freedom of Contract" 2011 Minn L Rev 2180-2253

Nel E The Business Trust and It's Role as an Entity in the Financial Environment (LLD-thesis NMMU 2012)

Nel E "The Impact of the European Union's Succession Regulation on a Multi-Jurisdictional Estate" 2018 TSAR 601-612

Nel E "Testamentêre Trusts en die Nederlandse Testamentair Bewind – 'n Regsvergelykende Ondersoek" 2019 TSAR 713-727

O'Brien J Conflict of Laws 2nd ed (Cavindish London 1995)

Pfeiffer M "Legal Certainty and Predictability in International Succession Law" 2016 J Priv Int L 566-586

Phipps O "Wills and Estates: The British Isles" Presentation for Fiduciary Institute of Southern Africa (March 2015)

Private Client Tax Committee The Netherlands: International Estate Planning Guide 8/2020 (Loyens and Loeff NV Lonon 2020)

Rešetar B "Matrimonial Property in Europe: A Link between Sociology and Family Law" 2008 EJCL 1-18

Ruggeri L, Kunda I and Winkler S (eds) Family Property and Succession in EU Member States: National Reports on the Collected Data (University of Rijeka Rijeka 2019)

Sänchez RL "Testamentary Trusts in English Law: An Introductory Approach" 2015 Cuadernos de Derecho Transnational 96-111

South African Reserve Bank Currency and Exchange Guidelines for Business 2020-02-14 (South African Reserve Bank Pretoria 2020)

Schulze H "Conflicting Laws of Conflict in Cases of International Succession" 2001 CILSA 34-47

Swire H "United States" June 2019 Step Journal 30-31

Van der Merwe NJ, Rowland CJ and Cronje MB Die Suid-Afrikaanse Erfreg 6th ed (JP van der Walt Pretoria 1990)

Van Erp S "New Developments in Succession Law" 2007 EJCL 1-20

World Trade Organisation World Trade Report 2008: Trade in a Globalizing World (World Trade Organisation Geneva 2008)

Wysocka-Bar A "Enhanced Cooperation in Property Matters in the EU and Non-Participating Member States" 2019 ERA-forum 187-200

Xuereb PG "The Constitution of Malta: Reflections on New Mechanisms for Synchrony of Values in Different Levels of Governance" in Albi A and Bardutzky S (eds) National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law (TMC Asser The Hague 2019) 141-143

Case law

Brack v Brack [2018] EWCA Civ 2862

JW v Williams-Ashman 2020 4 SA 567 (WCC)

Kubicka (Case C-218/16) 12 October 2017 CJEU

Mahnkopf (Case C-558/16) 1 March 2018 CJEU

Oberle (Case C-20/17) 21 June 2018 CJEU

Radmacher v Granatino [2010] UKSC 42

Versteegh v Versteegh [2018] EWCA Civ 1050

Legislation

England

Inheritance and Trustees' Powers Act, 2014

Malta

Civil Code Act XVI of 2015

Constitution of Malta, 1964

Recognition of Trusts Act, 1994

Trust and Trustees Act 35 of 1988, ch 331 of the Laws of Malta

Trusts and Trustees Act, 2004

Trusts and Trustees (Amendment) Act XI of 2014

Netherlands

Burgerlijk Wetboek

Portugal

Civil Code, 1967

Civil Registry Code

Code of Civil Procedure

Land Registry Code

Scotland

Family Law Act (Scotland), 1985

Requirements of Writing Act, 1995

South African

Administration of Estates Act 66 of 1965

Constitution of the Republic of South Africa, 1996

Law of Succession Amendment Act 43 of 1992

South African Citizenship Act 88 of 1995

Wills Act 7 of 1953

Wills Amendment Act 41 of 1965

United Kingdom

Recognition of Trusts Act, 1987

Trustee Act 29 of 2000

Wills Act 26 of 1837

International instruments

Basel Convention on the Establishment of a Scheme of Registration of Wills (1972)

Council Decision EU 2016/954 of 9 June 2016

European Convention on the Law Applicable to Contractual Obligations (1980) (the Rome Convention)

EU Council Regulation No 650/2012 (2012)

EU Council Regulation No 2016/1103, Implementing Enhanced Cooperation in the Area of Jurisdiction, Applicable Law and the Recognition and Enforcement of Decisions in Matters of Matrimonial Property Regimes (2016)

EU Council Regulation No 2016/1104, Implementing Enhanced Cooperation in the Area of Jurisdiction, Applicable Law and the Recognition and Enforcement of Decisions in Matters of the Property Consequences of Registered Partnerships (2016)

Hague Convention Concerning the International Administration of the Estates of Deceased Persons (1973)

Hague Convention on the Abolishment of the Requirements for Foreign Public Documents (1961)

Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions (1961)

Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons (1989)

Hague Convention on the Law Applicable to Matrimonial Property Regimes (1978)

Hague Convention on the Law Applicable to Trusts and on their Recognition (1985)

UNIDROIT Convention (1940)

Internet sources

European Network of Registers of Wills Association 2010 "Europe Wills" Programme: Status Report on Schemes of Wills Registration and Search in Europe http://www.arert.eu/IMG/pdf/etatdeslieux-2010-03-10-EN.pdf accesed 10 August 2021

European Commission 2005 Green Paper on Succession and Wills COM(2005) 65 final https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52005DC0065&from=en accessed 10 August 2021

Law Reform Commission Report on the Hague Convention on the Law Applicable to Succession to the Estates Of Deceased Persons (Law Reform Commission Dublin 1989)

South Africa – New York Date Unknown Dual Citizenship Information http://www.southafrica-newyork.net/homeaffairs/dualcitinfo.htm accessed 11 November 2019

Published

13-10-2021

How to Cite

Nel, E. (2021). Estate Planning and Wills Across Borders: Sometimes a Quagmire in the Making: . Potchefstroom Electronic Law Journal, 24, 1–31. https://doi.org/10.17159/1727-3781/2021/v24i0a8396

Issue

Section

Articles