Legal digest: Laws that make the local real estate market safer

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Notary Krishna Dwarka, of Dwarka Law Chambers, highlights the modes of bequeathal of property as prescribed by law in Mauritius.

"Like the rest of Mauritian civil law, the law of inheritance stems from Napoleonian law. Reserved shares are a given feature that guarantee the children of the deceased with a share of the estate that can, by no means, be reduced (the estate is split: in half if there is only one living child, in three, two thirds of which are reserved if there are two living children, and in four, three quarters of which go to three or more living children).

This reserved share cannot go to anyone but the children, not even in case of contrary dispositions by will, or by donations prior to the passing.

The rule of reserved shares being of public order, no one can renounce it. Although the living spouse inherits the equivalent of a child’s share, his is not reserved, making it possible to disown one’s widow by will.

There are, however, two major mitigating factors to this general rule. The first is that, in Mauritius, a foreigner may establish a Trust to hold and bequeath his property. This happens thanks to a mechanism which has a service provider licensed by the Financial Services Commission to hold a property for and on behalf of determined or determinable beneficiaries. It can, in certain cases, tamper with the principle of reserved shares.

Similarly, over the past 200 years, notaries in Mauritius have developed techniques to set up civil law private companies that reduce the impact of reserved shares in order to prevent the unnecessary breaking up of an estate among various heirs, which would, for instance, be paramount in maintaining the integrity of a company and its assets.

The second is that the modification of inheritance may happen due to the effect of Private International Law which prevails over the interactions between various legal systems. This area of law, albeit particularly complex, may be illustrated by taking the example of the case of the heirs of Johnny Hallyday: it explains that when a French national who settled permanently on foreign territory has the lawful choice to either follow the succession laws of his country of birth, or choose the one of his country of residence, by virtue of European regulation that allows him to do so.

Considering the number of foreigners who settled in Mauritius, I can observe the interaction between European and Mauritian laws on a daily basis. The intricacies of Private International Law, jointly with the heavy financial consequences of a lack of international structure surrounding estate and inheritance, often lead me to network with foreign colleagues-French and African notaries and attorneys or South-African or Australian barristers-to provide the best advice to foreign investors in Mauritius… As well as Mauritians wishing to settle abroad."