A will made outside of Cayman can now deal with Cayman moveable assets15 Mar 2019
The Formal Validity of Wills (Persons Dying Abroad) Law 2018 (‘Law’) came into force in the Cayman Islands (‘Cayman’) on 1 February 2019.
What is the Law about?
The Law relates to Cayman’s recognition of formalities required to make a testamentary instrument or act (a ‘Will’) valid in law when it is executed by the person making the Will (‘Testator’). A Testator executes a Will by following formalities required when it is signed, such a signing it in front of witnesses. Importantly, the Law only deals with the valid execution of a Will which disposes of Cayman moveable assets, such as shares, investments or personal effects such as jewellery. It does not change the requirements for a Will disposing of Cayman immovable property (such as real estate) or any interest in land in Cayman.
How does the Law help those who live outside Cayman?
If a person domiciled outside Cayman wishes to make a Will dealing with their moveable assets in Cayman, provided they execute their Will in accordance with the formal requirements of Cayman law, then Cayman law will consider the Will has been validly executed.
What was the position before?
Before the Law came into force Cayman law only considered a Will was validly executed if the Testator followed the formal requirements of the law in force in the jurisdiction where the Testator was domiciled when they died. This meant that if a person whose domicile was not in Cayman executed a Will dealing with Cayman moveable assets then after their death it was necessary to check if the Will execution complied with the requirements of the place the deceased was domiciled to ascertain if the directions on the Cayman moveable property contained in the Will were legally effective. This was inconvenient and could result an unexpected intestacy in regard to Cayman assets.
Why is this significant?
The Law replaces common law rules that severely restricted how any Will dealing with Cayman assets would be recognized. Cayman is one of the world’s leading financial centres and as such attracts significant foreign investment. This change makes it easier for those who are domiciled outside Cayman to make a valid Will which deals with their Cayman investments and other moveable assets.
How has this been received?
The Law has been welcomed and encouraged by Cayman’s financial services and international private wealth industries as it should end previous difficulties (particularly when advising clients from civil law jurisdictions) that existed by virtue of different rules applying in different countries.
What does the Law provide?
The Law provides that a Will disposing of moveable assets in Cayman will be treated as validly executed provided the Execution conforms to:
- the law of Cayman, or:
- the jurisdiction where the Will was executed; or
- the jurisdiction where the Testator was domiciled or had their habitual residence when the Will was executed or when the Testator died; or
- the state of which the Testator was a national when the Will was executed or when the Testator died; or
- the country where a vessel (including aircraft) on board which a Will is executed is either registered or with which it is most closely connected.
The Law defines a state as a territory or group of territories having its own law of nationality (including Cayman).
Does this affect Wills disposing of real estate in Cayman?
The Law does not change the existing requirement that a Will disposing of immovable property or any interest in land in Cayman must be executed in accordance with Cayman law. For more information of the requirements for making a Will in Cayman see our earlier piece Making a Will, and Wills and Estates
Are there other changes?
There are other provisions in the Law that address various uncommon matters, for example:
- a Will that relates to immovable property situated outside of Cayman which is made somewhere other than where that immovable property is located; or
- the ability of a Will to revoke a previous Will or provision;
- the exercise of powers of appointment; and
- special formalities relating to the testator fitting a particular description or to witnesses possessing certain qualifications.
Where someone dies after 1 February 2019 leaving a Will that deals with moveable assets in Cayman, its execution will be treated as valid in Cayman provided the Will was validly executed according to Cayman law, or the law where the Will was made.