In most jurisdictions, one of the following two succession routes is adopted in respect to succession and inheritance law. The first route is where there is freedom of testation whereby residents of that country have the right to donate, in a will, their assets to whoever they wish. This route is adopted by several countries such as South Africa and the UK. The second route mentioned is known as forced succession jurisdiction, derived from the French Code Napoleon, which constitutes a large bulk of the Mauritian civil law. Mauritius is one of the jurisdictions where the forced heirship rules apply albeit on a limited basis in relation to immovable property only. These rules consist of establishing a reserved and unreserved portion of assets. The reserved portion is then allocated to the children of the deceased, and this portion may not be infringed by any testamentary provision. The reserved assets are divided as follows:
- 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 unreserved portion of the estate may be allocated, by will, to whoever the testator intends.
It is therefore important that a foreign national take this into account in any estate planning, firstly by drafting a Mauritian will in order to avoid complex cross-border formalities and secondly by potentially using a trust to avoid the forced heirship provisions.
At death, in case that the testator did not have a will in place, the legal order of inheritance, in descending order of priority, is as follows:
- The descending line and the surviving spouse
- The favoured ascending line (father and mother) and favoured collateral line (siblings and children of predeceased siblings)
- The ordinary ascending line (grandparents, great-grandparents)
As mentioned above, the surviving spouse is included in the first class of legal heirs, nevertheless, she is not considered as a protected heir, which means that her share of inheritance can be at any time transferred to another beneficiary. Importantly, however, the surviving spouse is entitled to the right of usufruct over the matrimonial home and furniture contained in it until her death.
In the absence of any protected heirs, the deceased’s estate will vest in the Mauritian State.
Assets held under a trust in Mauritius
As far as assets held under a Mauritius trust are concerned, they can be disposed of/ distributed by the settlor to whoever he wishes. Accordingly, the forced heirship rules in force in Mauritius will not apply to those assets. However, it may well be prudent to ensure that the assets held under the trust are not located in a country which has the forced heirship rules are in place.
Laws governing inheritance of movable and immovable properties
As far as property laws in Mauritius are concerned, our jurisdiction is split into two principles:
- 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.
Therefore, all immovable property located in Mauritius are governed by Mauritian law, however, the inheritance of movable assets is governed by the laws of the last jurisdiction of domicile of the deceased or his country of permanent residence, and these rules apply to both Mauritian and non-Mauritian nationals.
As far as shares in a Mauritian entity are concerned, for instance, those would be deemed to be considered as movable assets and therefore not ruled by Mauritian law.
Rules governing real estate in Mauritius for non-Mauritians
The Non-Citizens (Property Restrictions) Act which is in force in Mauritius governs the disposal of any immoveable property located in Mauritius. This act requires non-citizens to seek and obtain the approval, through the Economic Development Board, of the Prime Minister’s Office before the purchase of immoveable property in Mauritius. Exceptions to this piece of legislation is the purchase of property under the Integrated Resort Scheme and under the Real Estate Development Scheme.