South African Will


(Michael Micklethwait) #1

Am I correct in thinking that a will dealing solely with assets in South Africa can be made in the UK the same way a UK will is provided that the testator and witnesses sign every page as well as the usual attestation clause

Michael Micklethwait
Dunn & Baker


(john2) #2

Wouldn’t be a problem as long as witnesses over 13years and obviously not beneficiaries. I think you would have to have a SA resident executor. Could the assets be worth more than R3.5m as they would be subject to estate duty. A number of years ago I discovered that although the rate of estate duty is levied at 20% on net assets up to R30m effectively 25% is paid. This is due to the liability for estate duty not being deducted to determine the net assets. I think this is also the case in UK where although your rate is 40% if you compare what the heirs receive to the tax paid the effective rate is 66.6%. I always giggle because I have heard UK lawyers saying the French pay more at 60%. I won a Bloemfontein Appeal Court decision against SARS which stopped the add back of tax where the estate residue is a charity, Up to that time if the residue was to a charity a special formula was applied to reduce the residue deduction so if the estate has a charity as the whole residuary heir one gets the whole residue as a deduction bringing the effective rate in line with the promulgated rate. I have developed a codicil with a formula that can be attached to any South African will which always ensures the residue is to a charity. My website is www.yfccodicil.co.za. I am sure your tax guys disallowing the tax liability is wrong. How can one dispose of all assets without providing for tax.

John Frith
Your Family Will


(PETER DOUBLE) #3

Dear Michael,
Yes, you are correct. We understand that the Will must be dated at the end (usual testamentary witness clause), signed by the Testator, witnessed by 2 persons each of whom must as you say, sign each page of the Will.
We suggest at least one of the witnesses should be a solicitor.
The Will must of course state that it only relates to assets in South Africa (or assets outside the UK / British Isles, if that is the case).
Be careful with the revocation clause as you do not want the SA Will to inadvertently revoke the UK (or any other Will) intended to remain in existence together with the SA Will.
Peter Double
Probate Resealing Services


(john2) #4

AS long as the witnesses are over 13years and obviously not beneficiaries there should be no problem.
South African assets will subject SA estate duty at 20% over R3.5m up to R30m and thereafter at 25%. You will need to appoint a SA resident as executor.
If the assets could be more than R3.5m you perhaps should read at www.yfccodicil.co.za about effective rate. Much like in your inheritance tax at 40% if you take what heirs receive over the tax free portion you have an effective rate of 66.6%. YFC Codicil added to any will in SA will stop the additional tax by avoiding paying tax on the assets used to pay the tax.

John Frith
Your Family Will