It is a legal instrument that permits a person, the testator, to make decisions on how his estate will be managed and distributed after his death. A person’s last will and testament will outline what to do with possessions, whether they are being left to another person, group or donated to charity, and what will happen to other things for which they are responsible, such as custody of dependents and accounts and interests management.
A will is written while a person is alive and carried out once they’ve passed away. In the will, a still-living person is named as the executor of the estate, and that person is responsible for administering the estate and is usually supervised by a notary court to ensure that what is specified in the will is carried out.
The Mauritian context
According to Mauritian Law, a will is valid only unless three essential elements are present. First, there must be a competent testator. Second, the document purporting to be a will must meet the execution requirements of statutes, often called the Statute of Wills, designed to ensure that the document is not a fraud but is the honest expression of the testator’s intention. Third, it must be clear that the testator intended the document to have the legal effect of a will under the unbiased supervision of a notary.
The different types of wills
There exist three types of will commonly used in Mauritius, namely the holographic will (private deed), the public will and the secret will.
A holographic should be written, dated and signed entirely by the testator’s hand on any king of material. It is usually remitted for safekeeping to a trustworthy person or a notary.
A public will should be drawn up by and before a notary. It requires the presence of two witnesses and the fulfillment of a number of statutory formalities.
A secret will is handed over in a sealed envelope to a notary in the presence of witnesses and it is subject to the fulfillment of specific formalities.
Important: It is advisable to have a public will drawn before a notary in Mauritius for this ensures physical preservation of the document and avoids any subsequent unwarranted litigation regarding the validity of the will.
Modification of a will
A will can be modified, cancelled or rewritten as many times as the testator wishes before his death by means of an addendum called a codicil which shall amend, rather than replace, a previously executed will. Amendments made by a codicil may add or revoke small provisions or may completely change the majority, or all, of the gifts under the will. It is advisable to go through the will from time to time to see if changes have been taken into account, for instance the birth a child, divorce, the death of an heir.
The different categories of heirs
There exist 4 different types of heirs according Mauritian Law:
- The descending lines, 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)
- The ordinary collateral line up to the 12th degree
Note: In case of absence any protected heirs, the deceased estate vests in the Mauritian State.
Legal distribution of assets
Mauritius being a forced heirship jurisdiction, the latter reserves a portion of the estate for the children of the deceased. Based on the Mauritian Civil Code, no testamentary provision may encroach upon the “reserved portion” which consists of:
- Half of the estate if the deceased leaves one child
- Two-third of the estate if the deceased leaves two children
- Three-quarter of the estate if the deceased leaves three or more children
It is almost impossible to contest a will drawn before a notary if it is proved that it was subject to undue influence or fraud. It is a formal objection raised against the validity of a will based on the contention that the will does not reflect the actual intent of the testator. Will contests generally focus on the assertion that the testator lacked testamentary capacity or was operating under an insane delusion.