Making a will in Cayman16 Jul 2018
Making a Will and keeping it up to date is something we all know we should do, and something that often gets postponed. Here we take a short look at why it’s important to keep your Will under review, the events which mean you should consider whether to change your Will and give some examples of the type of problems beneficiaries can face.
Why should I make a Will?
One of the best reasons for leaving a Will is that it gives you a say in important decisions taken after your death:
- You get to propose who will act as your Executors (those who fulfil the instructions you have left in your Will) (subject to their agreeing to act).
- the Cayman Islands (‘Cayman’) does not have legislation to restrict who can be named as a beneficiary under a will, or which insists that you provide for any dependents. This means that under your Will you are free to arrange the distribution of your assets among family members, friends, staff or charitable organisations. A specific gift can direct items of sentimental value to those who you consider will appreciate them the most. You can direct other assets to those you consider may need them the most, or you consider it is appropriate to benefit. Establishing trust funds can provide for the long term future of vulnerable family members, such as young children, relatives with long term illness or disability.
- You can leave instructions on the conduct of your funeral, and your burial or cremation. (You should advise your Executors of your intentions by a separate note, in case they do not see the Will straight away.)
- You can nominate guardians for your young children (under 18).
- You can arrange matters to deal with the situation where those who are to benefit under your Will (the ‘Beneficiaries’) die before you.
What happens if I die without a valid Will?
Like most jurisdictions, Cayman has a system to deal with a person’s assets after they have died without leaving a Will (dying ‘Intestate’). The Probate and Administration Rules ('Rules') set out what happens in this situation. There are categories of people related to a deceased who can apply for the Court to administer the estate, and the Rules set out how assets will be distributed among your surviving relatives. So Cayman legislation will decide what happens to your assets, according to a pre-determined list. You will not have any say in what happens at your funeral, to your remains, and who will look after your children.
I have a Will, so why change it?
Reasons to review a Will vary from simple changes of address to more complex changes that can come with a change in personal circumstances, such as a marriage. Here are some typical examples:
- Marriage or remarriage will automatically revoke any previously made Will, unless the Will was made in contemplation of the marriage. A new Will is needed or you will die Intestate.
- A divorce does not revoke any prior Will, and you may want to change your Will to reflect your new marital status.
- Marriage or re-marriage of a beneficiary may change the names of those beneficiaries, their financial situation or may bring step-children into the list of those you would want to benefit.
- On the purchase of a new home, there is a simple change of address in your identification on the face of the Will, and also of one of the major assets to be disposed of in your Will. With the purchase of additional homes or the acquisition of other substantial assets you may want to re-think how you want to distribute them among your beneficiaries.
- The birth of a child, a change in the financial, health or marriage status of one or more of your beneficiaries, their having more children, or their death, may mean it is appropriate to adjust the provisions you have made in your existing Will to include new family members, remove reference to those who have died, or to exclude a family member’s ex-partner, or a former staff member who had been due to benefit.
- Charitable donations may also need to be reviewed in case there are new charities which you would choose to benefit or existing charity beneficiaries merge, rebrand, change their focus or dissolve.
- Before a trust is established on your death it is possible to redraw the terms of the trust, such as the assets to be put into it and the category descriptions of who benefits.
- Over time family relationships often change as family members fall out or make up. Sometimes one of the reasons for a fall out is the feeling that someone has not benefitted sufficiently under a Will. If you have left a Will which seems like it may result in a lasting family dispute, then you may want to reconsider those provisions.
Why use a lawyer to draw up my Will?
There is no requirement that your Will has to be drawn up by a professional attorney, but for it to have any effect it will need to be valid under Cayman law. There are various formalities and rules which must be complied with, such as the Will must be signed, and witnessed by two independent witnesses who were both present at the time when the Will was signed. There are potential pitfalls, for example if the Will benefits a person who acts as a witness, then, while the Will remains valid, the benefit to the witness will fail. Other considerations also include:
- Where there are issues as to your capacity to make a Will, such as ill-health or duress, an experienced attorney will know what steps to take to reduce the risk of a successful challenge to the Will.
- If there are complex assets in your estate, shared property or assets which are located overseas, then an attorney can guide you on how to identify those assets clearly and accurately, and provide advice on how to act, or whether you need to consider a separate Will to deal with assets in another jurisdiction.
- If your Will proposes complex legacies, such as what should happen to an asset should the original beneficiary pre-decease you, or setting up trusts, then an experienced attorney will be able to guide you through the process.
What can go wrong?
Court disputes over a deceased’s estate can run for many years, with legal costs potentially taking a substantial portion of the assets which you have left. Family members can be set against each other, and rifts created that may never heal. Where provisions in a Will are not clear, for example in the correct identification of a family member or charity, then the family member or charity may simply lose out. As a charity will generally have an obligation to maximise its revenue, an inconsistency which could be interpreted in the charity's favour may mean it ends up disputing the Will with members of the family. There is a clear benefit to taking time to consider your Will, taking professional advice in its preparation and remembering that you may need to review it on a regular basis.