Ask the real estate lawyer

In years gone by, many of the older Caymanians who were sailing the seas for a livelihood sent their hard earned dollars home to invest in real estate. Over the years, these hardworking seamen have endeavoured to keep their land within their family circle. Wills were used as the popular medium to leave properties to family members through generations.

WHAT IF HE DID NOT LEAVE A WILL?

While some proprietors vigilantly used wills for estate planning, others unfortunately passed away prematurely without leaving a will. Dealing with someone’s affairs when they die can be complicated, confusing and lengthy, often taking months to complete. Where someone dies intestate (without a will), usually a Grant from the Court of Letters of Administration is sought. The Succession Law provides the statutory order which stipulates exactly who is entitled to seek such Grant and The Probate and Administration Rules provide the prescribed forms to be used. It is my advice that if you are uncertain of procedures or whether you have a beneficial interest, you should contact an attorney without delay.

WHAT IF HE LEFT A WILL?

Where there is a will, the Testator (the person making the will) would usually appoint a close family friend or a close family member to assume responsibility of the assets and liabilities of the testator after his death. This person is called an Executor.

WHAT IS THE ROLE OF 
THE EXECUTOR OF THE ESTATE?

An Executor’s job is to ensure that all the properties of the testator are collected, all the debts paid and assets distributed to the beneficiaries in accordance with the will. Where land in the Cayman Islands forms a part of the estate of the deceased, the executor must be prudent in the proper registration thereof and should apply for a Grant of Probate.

WHAT IF I AM A BENEFICIARY?

The Probate and Administration Rules allow a period of protection for those who may have concerns about challenging a will or just making sure that their interests are appropriately registered in the property. A caveat is a document which is used to notify the Probate Registry that a Grant of Probate should not be made without the applicant being notified. This would be a first step to protect a beneficial interest.

The Registered Land Law also provides the legal framework for transfer and transmission of land but beneficiaries must be vigilant to ensure that the Executor of a Will is appropriately registered on the land register. There can be numerous complications for beneficiaries and particularly contingent beneficiaries where an executor has inappropriately or erroneously registered himself on the land register. There can be equal complications where the Testator has left a life interest (life tenant) to a beneficiary. Careful attention must be give to the registration of such interest or the property could end up being tied up for a very long time at the end upon the death of the life tenant. Correcting this can be costly and time consuming. It is at the very early stage of Grant of Probate that beneficiaries should be attentive. If you are a sibling or family member of a deceased and you are uncertain of your rights and interests, you should be prudent and contact an attorney as soon as possible.

WHAT IF I WAS TOO YOUNG TO GET 
THE LAND – NOW I AM AN ADULT?

There are many incidents where parents or grandparents of young children bequeathed land to those children upon their death and had unsuspecting, appointed a rogue executor. As the children mature, they hear through the grapevine that land was left to them. Upon a search at the Land Register, they discover that the Executor has used the property as if it were his in his personal and legal capacity. This is sometimes due to error or a result of a rogue executor. The beneficiary who has now become an adult is in a position to claim that interest, but has to face legal expenses to try to retrieve his or her interest. It is not impossible even at this late stage to resolve the issue though it might be costly and time consuming.

ADVICE

To testators, there is no good reason to wait until you are unable to see, read, or write to make a will. You should apply your mind carefully in choosing an executor for your estate and be sure to let someone else know of your choice.

To executors, as an appointed executor, ensure that you follow The Probate and Administration Rules and the Succession Law. Where you feel it would be an injustice to the beneficiaries because you are not as mentally alert as you were when you were appointed, you should seek the advice of an attorney and ask about renunciation. You must consider the intention of the testator. If you are uncertain about your responsibilities, do not speculate but seek an attorney for legal advice.