MAURITIUS Law and Practice Contributed by: Johanne Hague, Ashwin Mudhoo, Medina Torabally and Yushrah Bayjou, CMS Prism in association with CMS
Enforcement Another factor is the enforcement procedures that need to be observed when a person has foreign suc - cession planning tools. One example is a foreign will. It may be more suitable for an individual to have a Mauritian will to regulate the succession of Mauritius- based assets instead of a foreign one, due to the cumbersome process associated with the legalisation, registration and enforcement of foreign wills. Using a Succession Planning Vehicle More sophisticated planning vehicles such as trusts and foundations may be more flexible than other tools. That said, there may be high maintenance costs, which may dissuade certain families from making use of such vehicles. The tax treatment of the succession planning vehicle and the taxation of its beneficiaries is also an impor - tant factor that ought to be taken into account when determining the right structure. Different considera - tions would be applicable to residents and non-res - idents. 2.3 Forced Heirship Laws Mauritius is a forced heirship jurisdiction and reserves a portion of the estate for the children of the deceased. The forced heirship rules in Mauritius are applicable if the deceased was domiciled in Mauritius or to Mau - ritius-situated assets. Pursuant to the Code, no tes - tamentary provision may encroach upon the portion of the estate reserved for those entitled to it under the law. The unreserved or “available portion” of the estate may be freely willed to any other person or any entity, whether Mauritian or foreign. Where the forced heirship rules are applicable, a por - tion of the estate of the deceased will be reserved for the children of the deceased. According to the Code, the reserved portion consists of one-half of the estate if the deceased leaves one child; two-thirds of the estate if the deceased leaves two children; and three- quarters of the estate if the deceased leaves three or more children. Forced heirship is treated as a règle d’ordre public (public order rule) and cannot therefore be circum -
vented by the use of other vehicles (such as trusts or foundations). In the event that an arrangement, such as a trust or a will, violates the forced heirship rules, the protected heirs are entitled to request that the bequeathed or donated assets be pooled back into the estate for calculation of the reserved and available portions. In order to avoid future disputes with regard to forced heirship, the tool of “ donation-partage ” (inter vivos donation) has been used in the past, whereby the assets are donated while the parents are still alive and with the approval of the children. This substan - tially reduces (but does not totally eliminate) the risk of the distribution being challenged posthumously. Other vehicles such as a société have also been used whereby the assets are pooled into a société with the nue-propriété (bare title) being vested in the shares of the children and the usufruct vested in the shares of the parents. 2.4 Marital Property There are three regimes of marriage in Mauritius: the legal community of goods regime, the regime of sepa - ration of goods, and a marriage settlement embodied in a notarial deed (most commonly known as a pre - Any asset that was acquired during the marriage will form part of the legal community of goods, irrespec - tive of whether a spouse contributed solely or jointly with the other spouse towards the acquisition of such asset. One exception is that property that was acquired by either spouse prior to the marriage will constitute sep - arate property and will not form part of the commu - nity of goods. The “common pool” of assets belongs to both spouses in a state of indivision; on the other hand, all assets that were owned by each spouse are considered as their personal property. A person who wishes to sell any asset forming part of the community of goods would be required to obtain consent from their spouse prior to selling the asset. nuptial contract or marriage contract). Legal Community of Goods Regime
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