Validity of Wills
The Formal Validity of Wills (Persons Dying Abroad) Law, 2018 (“the Law”) of the Cayman Islands came into force on 1 February 2019.
The Law applies to a will that is executed by a person who dies after its commencement while domiciled outside the Cayman Islands. The term “will” includes any testamentary instrument or act.
The Law abolishes any rule of the common law governing the formal validity of wills of persons dying abroad. Previously the law of the jurisdiction in which the testator was domiciled at the time of his death would determine the validity of his will as it relates to movable property wherever situate. The Law expands the ways in which a testator domiciled abroad may validly execute a will relating to property in the Cayman Islands. This is particularly important to individuals who are not domiciled in the Cayman Islands but have movable property situate here such as shares in a Cayman Islands company.
A will to which the Law applies shall be treated as properly executed if its execution conforms to:
- The internal law of the Cayman Islands; or
- The internal law in force –
- in the territory where it was executed;
- in the territory where, at the time of its execution or at the testator’s death, the testator was domiciled or had his or her habitual residence; or
- in the state of which, at either of the times in subparagraphs (i) or (ii), the testator was a national.
The Law defines “internal law”, as the law which would apply (in relation to any territory or state) in a case where no question of the law in force in any other territory or state arose. The term “state” means a territory or group of territories having its own law of nationality and includes the Cayman Islands.
The rules in relation to wills dealing with immovable property or any interest in land in the Cayman Islands remain unchanged. A will which deals with immovable property must therefore be executed in accordance with Cayman Islands law.
The Law provides that without prejudice to the above rules, the following shall be treated as properly executed:
- a will that is executed on board a vessel of any description (including aircraft) where the execution conforms to the internal law in force in the territory to which the vessel having regard to its registration (if any) and other relevant circumstances, may be taken to have been most closely connected;
- a will so far as it disposes of immovable property that is executed in accordance with the internal law in force in the jurisdiction in which the property is situate;
- a will so far as it revokes a will which under the Law would be treated as properly executed or revokes a provision which under the Law would be treated as comprised in a properly executed will, if the execution of the later will conformed to any law by reference to which the revoked will or provision would be so treated; and
- a will, so far as it exercises a power of appointment whose execution conformed to the law governing the essential validity of the power.
The Law also provides that so far as a will exercises a power of appointment, it shall not be treated as improperly executed by reason only that its execution was not in accordance with any formal requirements contained in the instrument creating the power.
The Law gives individuals not domiciled in the Cayman Islands more flexibility in the manner in which they may execute a will as far as it relates to movable property in the Cayman Islands and can assist in streamlining the administration of the estate.
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The information contained in this article is provided for the general interest of our readers, but is not intended to constitute legal advice. Clients and the general public are encouraged to seek specific advice on matters of concern. This article can in no way serve as a substitute in such cases.Copyright ©2019 Higgs & Johnson. All rights reserved.