Many years back when mainly doctors and rugby
players wished to immigrate to Australia, I had the opportunity to host, in
Sandton the Australian friend of the court. Two siblings were fighting it out in
court as the will lodged with the Master of the High Court in SA was ambiguous
said one, and impossible to implement said the other. As the will was prepared
in signed in Australia, the SA court accepted the Australian legal export on
succession law, as a friend of the court.
The expert arrived in SA on Saturday but I only
met him on Monday and true to our hospitable nature enquired about his
well-being and his experiences so far. He was most annoyed as the pilot made a
direct landing approach and did not circle around Table Mountain. On suggestion
of his friend who often visits SA en route to Australia, the Mountain is best
experience from the air. Being a gentlemen and a scholar I merely remarked how
sorry I am as it is indeed a splendid sight. My brain was in over time, how
could one fly around the Table Mountain en route to Australia? Where did the
friend fly to or from? Anyway, I am not going to upset the visitor by sharing
my thoughts on his geographic intelligence.
On our way to the advocate chambers for the
pre-trial, he asked me if I have seen the robot referred to in the will. A
robot?
I read about the pending patent on the bionic leg
the deceased, a prostatitis hoped to design for amputee athletes preferring to
walk or run on more than a thin Oscar Blade. In my best Australian English I
asked if there was traffic signal on the deceased’s Karoo farm. No, I was told,
the proto type is being built at the Innovation Hub in Pretoria. I silently
blushed (yes it is possible, but it can easily go over into uncontrolled
giggling) and realised when an Australian refers to a robot he refers to a
bionic man or limb, not a traffic signal installed at the Fountains Circle!
Later my learned Australian friend of the court,
as he became my friend asked me about my travels outside of our country. I only
travelled in “SA” I said and he asked with great excitement which cities and
did I travel inland as well. As I was about to remark that based on his
geographic insight into the location of Table Mountain, he may not know all the
cities I visited in SA, and it suddenly dawned on me: We are speaking past each
other!
SA I realised, in his frame of reference is South
Australia and I then asked about his friend visiting South Africa (I did not
say SA this time); where did he come from and where did he land? Oh he has a
son in Hawaii and flies from Australia to South Africa via Hawaii and a USA
hub. I then explained to him that certain flights from the USA lands in Cape
Town and much to his surprise, he was told that OR Tambo (as it now known) is
not the only international airport in South Africa.
This is but one example of daily English being
interpreted differently on different continents. This leads one to the
question: What else should South African expats be aware of in drafting their
new wills whilst residing in Australia, or New Zealand or the UK for that
matter.
In this article I will try and highlight some
issues faced by expats living outside South Africa.
Separate Wills
Expats is best advised to prepare a separate will
dealing with South African assets only, specifically where there is immovable
property held in South Africa.
Normally, only South African assets will be
subject to estate duty yet in the case of South Africans treated as tax
resident, yet residing abroad the sad news is that their wealth, where ever in
the world it may be situated. Formal emigration is not required to break tax
residency, however CGT on the emigration value of assets other than immovable
assets, will have to be paid. Escaping future death duties on your Australian
wealth could indeed involve paying CGT many years prior to your death.
Preparing a South African will could go a far way
to separate your dutiable South African estate from your non-South African
estate exempt from South African estate duty.
Having a South African will could protect your
legatees against a long and cumbersome process to have the Master of the High
Court (in South Africa) accepting not
only the certified copy of the Australian will but also the acceptance of the
Australian executor
Do Not Rely On An Australian Will Appointing An Australian Executor
The Master may accept the Australian appointed
executor without following normal procedures, on condition the deceased did not
reside in South Africa and the estate does not include immovable South African
properties. The foreign executor will, in all cases, be called upon to file a
final income tax return and an estate duty tax return.
Where there is immovable South African in situ properties held by a deceased
estate administered in terms of Australian law, the Master may as indicated
above, appoint a foreign executor or proceed to appoint a local executor once a
certified copy (by a competent public authority in the country or territory in
which such will) of the foreign will is filed at his offices in Pretoria.
Should the foreign will appointed executor be duly appointed in a foreign
country, proof of his of his or her authenticated appointment must be forwarded
to the South African Master of the High Court. Authenticated is not the same as
the certified copy process and due to this cumbersome process, South African
Expats (Saffas) are often advised to prepare a separate will dealing with South
African Assets and in said will, appoint a local South African executor which
can be a surviving spouse, a relative and or the agent or correspondent office
of the duly appointed Australian Executor.
Differences in Capital Gains Tax And Estate Duty Rules
Australia does not levy estate duty or a death
duty based on wealth transferred, as is the case in South Africa.
Excluding all assets not found in South Africa,
from the ambit of the South African will and executor, could ensure that no
Australian assets are mistakenly made subject to South Africa estate duty,
merely because the is bequeathed to a South African resident relative.
South African assets exceeding the R3.5m dutiable
sub-minimum could be bequeathed to a surviving spouse, saving the local estate
several thousands in estate duty and capital gains tax on immovable properties
Can I Do Without a South African Will, Once All My Assets Were
Extracted From South Africa?
The disputed will referred to in the introduction
was an Australian instrument and became relevant as a predeceased grandfather bequeathed
and expiring usufruct to a legatee nominated in the last will and testament of his Australian son and failing any valid
will, the intestate legates of his son. Due to one son having died in
Australia, without a local will or dutiable estate, and without any children,
his share of the expiring usufruct may revert to the deceased’s siblings. The
widow in Australia argues that although there was no estate registered in SA,
the Australian will’s only nominated legatee (herself) should benefit from
grandfather’s will. A court case ensued and the lesson learnt is that even if
the one pager bequeathed the entire residue to the surviving spouse and
children in equal share, an expensive court case may be avoided as the assets
dealt with and or taxed within a deceased estate was not always assets knowingly held and managed but the deceased.
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