High net worth individuals hold bank accounts in different jurisdictions like Singapore, England, Dubai and Switzerland. These accounts are an asset of the account holder and will form a part of the individual’s estate on death. Consequently, the legal issues which might arise on the death of the account holder need to be carefully considered.
Key issues to note:
1. The first point to consider is the booking office of the account. An account holder may have a relationship with his bankers in Dubai. However, if the account is ‘booked’ (held and operated) in Singapore (the booking office), for example, then the laws of Singapore will prime facie be relevant to the account. Although it may be possible to use a will prepared in accordance with the laws of the account holder’s domicile (usually the account holder’s home jurisdiction) in respect to the Singapore account, the account holder may wish to have a Singapore will limited only to his Singapore account. In this case, the form of the Singapore will must accord with the requirements of Singapore law.
2. The advantages of having a written will would be apparent to most. A primary advantage is that an individual can, generally speaking, decide on his executors and the class of beneficiaries, including confirming the proportionate share to be gifted to each beneficiary. In the event a will is not made, most countries have intestacy rules which will regulate the disposal of a deceased’s assets by identifying beneficiaries and the proportionate share of the estate to be enjoyed by each beneficiary. As intestacy rules are fixed, the deceased may inadvertently benefit an individual he did not intend to benefit (for example, an estranged child or sibling) or bequeath a larger share of his assets to certain beneficiaries. An effective will has the advantage of allowing the deceased to benefit those individuals who he desires to benefit. However, freedom to dispose assets on death will be limited in the jurisdictions which have a ‘forced heirship’ system of inheritance. A good example of this is the Sharia’h inheritance principles under Islamic law which apply in many Muslim countries. In this case, the ability to enjoy the freedom to dispose assets on death freely is limited or restricted by the applicable Sharia’h principles applicable in the relevant country.
3. If we take the example of an individual who has a Singapore bank account, it is not sufficient to simply have a will which accords with Singapore law. There is a further critical legal issue to consider.
As bank accounts are considered ‘movable assets’, the money in the bank account will be distributed in accordance with the inheritance laws of the country of ‘domicile’ of the deceased person at the time of his death.The meaning of ‘domicile’ of a person generally refers to the country that a person treats as his permanent home and has a substantial connection with. In many cases this will be the place of birth of the individual. It is important to understand that ‘domicile’ and ‘residence’ are different legal concepts. An individual’s ‘domicile’ can be separate from that individual’s ‘residence’ (tax or otherwise). For example, an account holder may be domiciled in Kenya but resident in the UAE. If such an individual holds a Singapore bank account and has made a Singapore will, it is still necessary to consider the law of his domicile. If the law of his domicile gives him the freedom to dispose his assets freely then the bequests in the Singapore will in relation to the disposal of the proceeds of the account will be recognised and given effect to by the Singapore courts. However, if the account holder is domiciled in, say, the UAE and is Muslim by faith, then he will not enjoy freedom to dispose his assets and the Singapore courts will recognise and give effect to Sharia’h, being the inheritance law of his domicile. A Singapore will by such an account holder may therefore not have much value if it does not accord with UAE Sharia’h law principles.
4. In relation to forced heirship, an account holder would also need to consider making provision for his ‘dependants’, which would be a class of family members that the deceased would need to provide for under his will. If sufficient provision has not been made, a dependant may challenge the Singapore will and the dependancy rules of the inheritance laws of the country of ‘domicile’ of the deceased person at the time of his death would apply.
To summarise, an individual who holds a foreign bank account has a number of technical legal issues to consider in relation to his succession planning. He will need to first understand where his bank account is booked in addition to the law of his domicile and then consider whether he can freely make bequests or if there are any restrictions on his ability to freely dispose his assets made under a will. These issues are critical to consider so that any wills drawn up are valid and recognised by law and the deceased account holder’s wishes in relation to his accounts are upheld.