Offshore investing: No freedom of succession in Mauritius
South Africa practices freedom of succession (subject to certain exclusions) and South African residents are, in essence, free to bequeath their assets to whoever they please. “A number of countries do not have this freedom of succession and they apply forced succession. – such as Mauritius,” says Gordon Stuart, Director of Accuro’s Mauritius office. He was addressing the 7th Annual FISA Conference held today in Sandton.
He explains that the consequences of forced succession are that assets could pass to individuals that the deceased did not intend benefitting as well as untimely death duties.
The law of succession in Mauritius is derived from the French Napoleonic Code of 1804. “The country is a forced heirship jurisdiction and a portion of the estate is reserved for the children of the deceased.”
He adds that there is an unchallengeable right to a reserved portion of the deceased’s estate for the direct line of heirs and such heirs are entitled to a reserved part of the estate of the deceased.
No testamentary provision may encroach upon the “reserved portion”, which consists of:
One half (50%) of the estate if the deceased leaves one child.
Two thirds (66%) of the estate if the deceased leaves two children.
Three quarters (75%) of the estate if the deceased leaves three or more children.
“The reserved portion is divided equally amongst the surviving children and the descendants of any pre-deceased children (i.e. children who die before their parent). The descendants of a pre-deceased child are jointly entitled to the pre-deceased child’s share of the reserved portion,” Stuart adds.
The unreserved or “available portion” of the estate may be freely willed to any other person, including an heir under forced heirship provisions, or any entity, charitable or religious body, whether Mauritian or foreign.
Although the surviving spouse forms part of the first class of legal heirs, he/she is not a protected heir, and his/her share may be bequeathed to another legatee by gift or testament. Notwithstanding the above, the surviving spouse is entitled to a lifetime right of usufruct over the matrimonial home and furniture.
Stuart explains that the principles applying to the inheritance of property in Mauritius are:
- Lex rei sitae – (the law where the property is located) applies to immovable property, and Lex domicilii – (the law of the domicile of the deceased) applies to movable property.
- Mauritian law systematically governs the inheritance of immovable property situated in Mauritius; however, the inheritance of movable assets is governed by the laws of the last domicile (i.e. country of permanent residence) of the deceased. This applies equally to Mauritian citizens and foreigners.
- A loan to a Mauritian structure such as a trust or a company and shares in a company are deemed to be movable assets in a Mauritian estate and are therefore governed by South African law i.e. the South African will.
“Preparing a Mauritian will is more complicated than drafting a South African will,” says Stuart.
“To start with, Mauritian law does not recognise oral, joint or mutual wills. Furthermore, unlike in South Africa where the surviving spouse or child can be nominated as the executor, no heir can be appointed as an executor in the will.”
In relation to wills drafted outside of Mauritius, the Code does recognise wills prepared under the laws of another country, however foreign wills are unenforceable in respect of movable and immovable property situated in Mauritius unless they have been duly registered at the office where the immovable property is situated. For information purposes ‘office’ refers to the body responsible for the registration of wills.
“It is advisable for a foreigner to draw up a will in Mauritius for the ‘available portion’ to avoid cumbersome legalization, registration and cross-border enforcement formalities associated with a foreign will,” Stuart says.