Law amended on validity of wills

Members of the Legislative Assembly have approved a bill that will amend the law governing the execution of a will left by someone who dies while residing outside of the Cayman Islands.

Minister of Financial Services Tara Rivers said, “The enactment of this legislation will be welcomed and was encouraged by the financial services industry,” including onshore, international, private client advisors and estate planners.

The legislation replaces common law conflict rules that determine which country’s laws govern the execution of a will in cases where the testator had a foreign domicile or owned foreign assets.

This is particularly relevant in an international financial center like the Cayman Islands that attracts foreign investors who, for example, own shares in Cayman-registered companies.

Under common law conflict rules, the formal validity of a will of immovables, such as land or real estate, depends on the law of the country where property is located, and the formal validity of a will of movables is governed by the law of the country in which the testator was domiciled at death.

This can lead to ambiguities and conflicts, given that different rules apply in different countries in terms of the required signatures, witnesses and notarizations, or whether a will needs to be handwritten for it to be recognized as properly executed.

The Formal Validity of Wills (Persons Dying abroad) Bill prescribes that a will is considered formally valid if it conforms with either: Cayman Islands law; the law in the territory where the will was executed; the law in the territory in which the testator was resident or domiciled at the time of the will’s execution or the testator’s death; or the state of which the testator was a national at the time of the will’s execution or at the time of the testator’s death.

The bill is modeled on the U.K. Wills Act of 1963 and the 1961 Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. Although the Hague Convention was extended to the Cayman Islands, there was until now no law giving effect to its rules.

Based on representations made by industry practitioners to the government, the Hague Convention rules and those included in the bill, “provide for a more facilitative form from the testator’s point of view with respect to their intentions regarding testamentary dispositions,” Minister Rivers said.

The new rules will eliminate any ambiguities and provide testators with a more flexible arrangement in accordance with internationally accepted standards set by the Hague Convention, she added.