Potential Conflict of Laws in Crossborder Successions between South Africa and Germany

• Jurisdiction: South Africa
• Citation: (2012) 23 Stell LR 381
• Author: Andrea von Zelewski
• Published date: 16 August 2019
• Date: 16 August 2019
• Pages: 381-407

381

POTENTIAL CONFLICT OF LAWS IN

CROSSBORDER SUCCESSIONS BETWEEN

SOUTH AFRICA AND GERMANY

Andrea von Zelewski

First and Second German State Examinations in Law, LLM

Lecturer, Faculty of Law, University of the Western Cape*

1 Introduction

South Africa is an attractive location for a considerable number of German-

speaking peo ple. The migration of members of t he German community f rom

their home country to South Africa was caused by historical events, such as

the Fir st and Second World Wars. Nowadays it is rathe r due to factors li ke

globalisation and changing life styles that a considerable number of people

take the decision to emigr ate from their home country, Germany or South

Africa, on a per manent or temporary basis. It is estimated that there is a

German com munity in the Wester n Cape alone of about 300,000 or more.1

With immigration people start new lives. They either enjoy their retirement

or have t o build up new professional careers or private lives. They invest in

their own businesses; they purchase residential or bu siness properties, and

accumulate all other k inds of assets and/or liabilities.

Only a small nu mber of them, though, c onsider the legal implications of

building up assets and c reating l iabilities in a foreign country, especially

when it comes to thei r own estate planning. In most cases they are not aware

of the difculties they have to consider when it comes to the planni ng of their

own estate or, if they fail to do so, the difculties their beneciaries wi ll face

when it comes to the admi nistration of the deceased estate.

The objective of the article is to illu strate the need for proper estate

planning in cases of testate succession where the estate owner has a ssets in

both Germany a nd South Africa at the t ime of his death in order to avoid

unwelcome results in the d istribution of assets , delays in the administration

process and to avoid litigation between benecia ries.

The article starts in part two with a brief description of some central

differences in the subst antive law of succession and the a dministration of

deceased estates in Ger many and South Africa to illustrate the different ways

that South African a nd German law would deal with the main issues in the

law of succession. The third pa rt focuses on t he international ju risdiction in

civil proceedings, and the fourth part deals with the Private Inter national Law

(“PIL”) rules of e ach country. Part ve deals with the conicts which might

* I would like to tha nk Dr Jülicher, a s pecialised att orney in the l aw of succession (Ger many), Professor S

Leeman as well a s Professor K Boele-Woelki for t heir assistance

1 As South Africa d oes not keep a popu lation register t his is only an es timate, but the n umber seems to b e

on the increa se

(2012) 23 Stell LR 381

© Juta and Company (Pty) Ltd

arise out of the application of the PIL rules of both countries to one estate. The

article closes with a discussion on inst ruments available to minimise possible

conicts in the i nternational est ate planning process.2

2 Differences in th e law of succession and administration o f

deceased estates ac cording to German and South African law

The purpose of this ar ticle is not to give a comprehensive overview and

in-depth discussion of all the main differences in the substantive law of

succession of both countries. It only highlights some signicant differences to

illustrate the pos sible impact on the intern ational estate planning process and

the later admi nistration of a deceased estate in cas es where different national

laws would be applied.3

2 1 Transfer of assets and liabilities at the time of death

2 1 1 Germany

According to the principle of universa l succession, the estate of a deceased

person in Germany is tra nsferred to one or more heirs as a whole.4 If there are

several heirs, an individual heir will be entitled to an undivided sha re in the

estate and not to specic assets. The heir s become and remain co-debtors and

co-creditors5 until the distr ibution of the estate is nalised.

Not on ly the assets, but also the liabilities, are transferred to the heirs.6

The heirs are liable for the liabilities of the estate unless they repudiate their

benets.7 An estate creditor can execute outstand ing debts not only again st

the ass ets of the deceased estate, but also against the p ersonal assets of the

heirs (Grundsatz der u nbeschränkten Erbenhaftung), unless the heir s applied

for the administration of the es tate (Nachlassverwalt ung) or applied for the

sequestration of the estat e due to insolvency (Nachlassinsolvenz).8

2 1 2 South Africa

With the replacement of the common law system of u niversal succession

the estate rst goes to the Executor who has the task to administe r, liquidate

and distribute t he estate.

The Execut or – and not the individual beneciar y – becomes liable. The

beneciary general ly obtains a persona l claim upon the death of the tes tator,9

but the claim only becomes enforceable against the Executor upon completion

of the est ate acc ount once it has be en duly advertised to lie for public insp ection

and the period has lapse d without any objections having been lodged.

2 Tax issues are not covered in t his article

3 For an in-depth discussion on the Germ an law: H Brox & WD Walker Erbrecht 25 ed (2012); for the South

African la w: MJ de Waal & MC Schoeman-Ma lan Law of Successi on (2008)

4 S 1922 Bürgerliches Geset zbuch (“BGB”)

5 Ss 2032-2040.

6 S 1967.

7 Ss 1942-1952.

8 S 1975.

9 Greenberg v Estate Gr eenberg 1955 3 SA 361 (A)

382 STELL LR 2012 2

© Juta and Company (Pty) Ltd