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Wills and probate
What rules and restrictions (if any) govern the disposition of and succession to an individual’s property and assets in your jurisdiction?
The law of succession that would apply to a deceased person’s assets is that of:
- the person’s deceased’s domicile if the assets are movable; and
- the situs of the assets if the assets are immovable.
For persons dying domiciled in the BVI and/or assets situated in the BVI, the law applies freedom of testation. There is no equivalent of, say, the United Kingdom’s Inheritance (Provision for Family and Dependants) Act 1975.
Shares in BVI companies are deemed situated in the BVI for title purposes, but are movable property for succession purposes. Accordingly, a BVI Grant of Representation is required to pass title to the shares, but the identity of the personal representative and beneficiary will be decided by the relevant law of the deceased’s domicile.
What rules and procedures govern intestacy?
For persons dying domiciled in a non-BVI jurisdiction, the intestacy rules governing their BVI movable assets (including shares in BVI companies) are that of their jurisdiction of domicile.
For intestate persons dying domiciled in the BVI and/or holding immovable BVI assets, the relevant legislation is the Intestate Estates Act (Cap 34).
The surviving spouse takes:
- the personal chattels;
- $240 or a sum equal to 10% of the net value of the estate, whichever is greater, with 5% a-year interest until payment; and
- half of the residue on trust for life (if issue) or the whole on trust for life (if none).
In case of issue but no spouse, the residue is held on statutory trusts for the surviving issue.
In case of surviving parents but none of the above, the residue is held on trust for the surviving parent(s).
If none of the above applies, the residue is held on statutory trusts for the following in descending order:
- brothers and sisters of the whole blood;
- half-brothers and half-sisters;
- grandparent or grandparents equally;
- uncles and aunts of the whole blood; and
- uncles and aunts of the half blood.
If none of the above applies, the residue is held absolutely for:
- the spouse (ie, absolutely rather than a trust for life); and
- the Crown.
‘Statutory trusts’ broadly means:
- a trust for sale for the relevant relatives and their issue in equal shares per stirpes when they attain 18 years;
- subject to statutory maintenance and accumulation provisions; and
- hotchpot provisions apply.
What rules and restrictions (if any) apply to the governing law of a will?
There is free choice over a will’s governing law. However, for the governing law of a will to be most effective, it should match the relevant law of succession.
The law of succession that would apply to a deceased’s assets is that of:
- the deceased’s domicile if the assets are movable; and
- the situs of the assets if the assets are immovable.
What are the formal and procedural requirements to make a will? Are wills and other estate documents publicly available?
The BVI’s Wills Act (Cap 81) contains the familiar English requirement that no will is valid unless it is:
- in writing;
- signed at the foot, or end, thereof by the testator, or by some other person in his or her presence and by his or her direction; with
- such signature being made, or acknowledged, by the testator in the presence of two, or more, witnesses present at the same time, and such witnesses attest and subscribe the will in the presence of the testator, but no form of attestation is necessary.
As to wills executed by persons domiciled elsewhere, there is a controversy about whether the BVI has ever signed up to the 1961 Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. An order in council needed to be passed by the United Kingdom to extend it to the BVI and the United Kingdom’s Foreign Office both believe it was, and in practice the BVI Probate Registry operates as if it was, but some prominent BVI lawyers say it was not.
If the BVI did not sign up to the convention, it falls back to the old common law position that the will has to be executed in accordance with the law of domicile at the date of death. There is then a further question as to whether the ‘law of domicile’ means the internal law only, or also the jurisdiction’s own conflict of law rules.
Therefore, cautious clients may wish to check with lawyers from their place of domicile how to validly execute the wills in accordance with their laws. Of course, that does not prevent a question if the client eventually dies domiciled elsewhere.
In terms of public availability, there is no registry of wills. However:
- before an application for a Grant of Representation is made, adverts must be run in local BVI newspapers (which are not currently digitally available). The advert must contain the names and addresses of the deceased and executor, and the dates of the will (if any) and death. They do not contain details of the deceased’s BVI assets;
- once the application is lodged, it will be entered on a list searchable for caveat purposes. This list will simply contain the names of the deceased and executor;
- once a grant is made, it will be entered on a register of grants. The public may take copies of the register, and the grants, for a small fee. The grants contain the same information as the adverts. Practice as to whether the copied grant would contain the will has differed in the past and the recently enacted Eastern Caribbean Supreme Court (Non-Contentious Probate and Administration of Estates) Rules 2017 do not provide guidance. However, the precedent grants reference an “annexed Will”, which implies that they will.
Validity and amendment
How can the validity of a will be challenged? Can the will be amended after the decedent’s death?
A will can be challenged during the probate process. The initial approach is via the familiar common law caveat/warning/appearance system, after which the relevant rules move from the Non-Contentious Probate Rules to the general Civil Procedure Rules. The High Court has the usual wide common law powers.
Under BVI law, a will cannot be amended after the testator’s death. However, a beneficiary’s entitlement may potentially be varied depending on the succession law of the domicile (if the relevant assets are movables) or asset situs (if non-movables).
How is the validity of a will established in your jurisdiction?
Whether the person died in the BVI or elsewhere, the prospective personal representative must apply for a Grant of Representation at the BVI Probate Registry via a paper application. The exact documents will depend on the exact circumstances, but generally include:
- the application itself;
- a draft order and grant;
- an original or certified death certificate.;
- the original will marked with the prescribed wording. An authenticated copy may be supplied in limited circumstances;
- an oath by the personal representative explaining the circumstances of the death and swearing to administer the estate according to law, etc;
- an affidavit by the personal representative confirming the rough value of the estate. This can be a rough value because no inheritance tax is payable in the BVI, but it does affect the court fee, which ranges from a few hundred dollars for a low-value estate to $5,000 for estates worth over $5 million;
- an affidavit by the personal representative explaining the delay if the application is made over three years since the date of death;
- an affidavit by a witness to the will confirming that he or she witnessed the deceased execute it validly;
- if the deceased was domiciled outside the BVI, an affidavit by a lawyer in the deceased’s jurisdiction of domicile explaining why the personal representative is entitled under the law of that jurisdiction to administer the estate;
- copies of adverts in a BVI newspaper with prescribed wording; and
- copies of searches made in the BVI Probate Register.
Depending on the jurisdiction they are sworn in, affidavits must be notarised and potentially legalised. Any notarisations or legalisations in a non-English language, and any other document in a non-English language, must be translated and the translator swears an affidavit of translation with prescribed wording.
There is a per-document registry fee and the ‘headline’ registry fee mentioned above.
Note that grants from a limited number of Commonwealth jurisdictions (essentially those that retain the Queen as head of state) may be resealed in the BVI. Although this also requires an application, the documents are simpler and fewer than for a full application.
To what extent are foreign wills recognised? Do any special rules and procedures apply to establishing their validity in your jurisdiction?
Foreign wills are recognised to the extent that they abide with the relevant jurisdiction’s laws regarding entitlement to a grant, succession and formal validity.
A BVI Grant of Probate will be required for the will, even if a grant has already been obtained elsewhere. It is important to note that shares in BVI companies are deemed situated in the BVI for title purposes, but are movable property for succession purposes. Accordingly, a BVI Grant of Representation is required to pass title to the shares, even though the identity of the personal representative and beneficiary will be decided by the succession law of the deceased’s domicile.
As part of the probate process, an affidavit must be submitted by a lawyer in the jurisdiction under which the will is held to be formally valid.
Grants from a limited number of Commonwealth jurisdictions (essentially those that retain the Queen as head of state) may be resealed in the BVI. Although this also requires an application, the documents are simpler and fewer than for a full application.
What rules and procedures govern:
(a) The appointment of estate administrators?
Entitlement to act as personal representative is according to the law of the deceased’s domicile.
If the deceased died domiciled in the BVI, the order of entitlement is contained in Rule 10 if with a will (whether seeking a Grant of Probate or Letters of Administration with Will Annexed) and is as follows:
- the executor;
- any residuary devisee or legatee holding in trust for any person;
- any other residuary devisee or legatee;
- any devisee or legatee holding in trust for any other person;
- any devisee or legatee;
- any person entitled to share in the undisposed residuary estate; and
- such other person as the court may direct.
If the deceased left no will, the order of entitlement is contained in Rule 14 and is as follows:
- the surviving spouse of the deceased;
- the children of the deceased, and the issue of any child who died before the deceased;
- the father and mother of the deceased;
- brothers and sisters of the whole blood and the issue of any deceased brother or sister of the whole blood who died before the deceased;
- brothers and sisters of the half-blood and the issue of any deceased brother or sister of the half-blood who died before the deceased;
- uncles and aunts of the whole blood and the issue of any deceased uncle or aunt of the whole blood who died before the deceased; and
- uncles and aunts of the half blood and the issue of any deceased uncle or aunt of the half-blood who died before the deceased.
(b) Consolidation and administration of the estate?
A BVI Grant of Representation is required for the personal representative to administer most BVI assets with the usual exceptions of personal chattels, jointly held assets with rights of survivorship, etc.
Most readers are likely to be concerned with administering shares in BVI companies. In order to transfer shares, most registered agents will require, as well as the BVI grant, a completed share transfer, resolutions, and KYC (ie, know-your-customer) documents for the beneficiaries. They may agree to complete these documents for a fee, and will in general probably charge a fee to process the transfer.
(c) Distribution of the estate to heirs?
The personal representatives are responsible for distributing the assets to the beneficiaries in accordance with the deceased’s law of domicile. The BVI Probate Registry will not proactively interfere with that process and it is the beneficiaries’ job to enforce correct distribution. Note in particular that there is no need to inform the BVI Probate Registry of any variations or disclaimers between the beneficiaries.
Most readers are likely to be concerned with administering shares in BVI companies. In order to transfer shares, most registered agents will require, as well as the BVI grant, a completed share transfer, resolutions, and KYC documents for the beneficiaries. They may agree to complete these documents for a fee, and will in general probably charge a fee to process the transfer.
(d) Settlement of the decedent’s debts and payment of any taxes and fees?
For persons dying domiciled in the BVI, it is the personal representative’s duty to settle the deceased’s liabilities from the estate.
Are there any special considerations specific to your jurisdiction that individuals should bear in mind during succession planning?
It is a simple but often unappreciated point that a BVI Grant of Representation is required in order for the personal representative to pass title to shares in BVI companies, or to be able to act in relation to them by exercising membership rights. This is the case even if a grant has already been obtained in the deceased’s domicile. Shares in BVI companies are deemed situated in the BVI for title purposes, but are movable property for succession and grant entitlement purposes; therefore, the identity of the personal representative and beneficiaries will be decided by the law of the deceased’s domicile.
Unlike other comparable offshore jurisdictions, the BVI will reseal grants from only a few jurisdictions. The list is essentially the United Kingdom, its overseas territories and crown dependencies, and those Commonwealth jurisdictions that have retained the Queen as their head of state.
The probate process in the BVI is relatively involved. Many clients who wish to expedite this process, if resealing is not possible and if trusts or other probate avoidance solutions are not desirable, decide to execute a BVI will. On a practical level, the BVI Registry is familiar with BVI wills and so will generally process the application faster. It also allows the applicant to carry out the BVI process simultaneously with the processes in other jurisdictions. Other ways to expedite it include having a witness to the will execute the required affidavit of due execution before the testator’s death, so as to avoid the risk that a witness cannot be found after death, causing delays to the process.
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