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Wills and probate

Succession rules

What rules and restrictions (if any) govern the disposition of and succession to an individual’s property and assets in your jurisdiction?

The Cayman Islands follows common law concepts of freedom of testamentary disposition. There are no forced heirship rules under Cayman Islands law. English common law rules on conflicts of law apply, meaning that the law of the jurisdiction of immovable property will apply to the disposition of such property, and the law of the decedent’s last domicile will apply to movable property. Consequently, the validity of the decedent’s will is determined by the law of the decedent’s last domicile, with domicile being determined according to English law.

Intestacy

What rules and procedures govern intestacy?

The decedent’s personal representative is responsible for ensuring the decedent’s estate is dealt with in accordance with the law. The personal representative must apply to the Cayman Islands Court for a grant of letters of administration. The Succession Law (2006 revision) provides for how chattels and residuary estate are distributed to the surviving spouse, children and other close relatives. If there is no spouse or children, the residuary of the estate will be distributed in the manner prescribed in the Succession Law, and in the case of default of any person taking an absolute interest, the residuary estate of the intestate shall belong to the Crown as bona vacantia.

Governing law

What rules and restrictions (if any) apply to the governing law of a will?

The validity of the decedent’s will is determined by the law of the decedent’s domicile. The decedent’s domicile is determined according to English law. Legitimate children take the domicile of their father, whereas illegitimate children take the domicile of their mother. Domicile is changed by moving to a new place with the unequivocal intention to reside permanently and indefinitely in that new place.

Formalities

What are the formal and procedural requirements to make a will? Are wills and other estate documents publicly available?

A testator must have testamentary capacity, meaning the testator has attained the age of majority and understands the nature of making the testamentary disposition. For requisite mental capacity, the Cayman Islands follow the well-established principle from the English Court of Appeal in Banks v Goodfellow (1870, LR 5 QB 549):

It is essential… that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate that claims to which he might give effect.

The testator must know and approve of the will’s contents, and not be subject to undue influence or coercion. The will must be signed by the testator in the presence of two witnesses who also sign contemporaneously. When the Cayman Islands Court grants an order for probate or letters of administration, the associated will and order are recorded in the public records of the Probate Court of the Cayman Islands.

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 on the basis that it was not validly executed in the domicile of the decedent. The decedent’s domicile is determined according to English law. Legitimate children take the domicile of their father, whereas illegitimate children take the domicile of their mother. Domicile is changed by moving to a new place with the unequivocal intention to reside permanently and indefinitely in that new place. For wills entered into under the law of the Cayman Islands, lack of mental capacity, undue influence, duress, forgery or invalid execution, if proved, can invalidate a will. Invalid execution, such as absence of signatures (witness or testator), is easy to prove. However, proving a lack of testamentary capacity can be much more difficult, lengthy and expensive. If a challenge is successful, the will would be declared invalid and any valid prior will would be admitted to probate.  If no valid prior will exists, the rules governing intestacy will apply.

How is the validity of a will established in your jurisdiction?

The validity of the decedent’s will is determined by the law of the decedent’s last domicile. The decedent’s domicile is determined according to English law. Legitimate children take the domicile of their father, whereas illegitimate children take the domicile of their mother. Domicile is changed by moving to a new place with the unequivocal intention to reside permanently and indefinitely in that new place.

To what extent are foreign wills recognised? Do any special rules and procedures apply to establishing their validity in your jurisdiction?

Validly executed foreign wills are recognised in the Cayman Islands. Validity of the decedent’s will is determined by the law of the decedent’s last domicile. English common law rules on conflicts of law apply, meaning that the law of the jurisdiction of immovable property will apply to the disposition of such property, and the law of the decedent’s last domicile will apply to movable property. The decedent’s domicile is determined according to English law.

Estate administration

What rules and procedures govern:

(a) The appointment of estate administrators?

The decedent’s personal representative is responsible for ensuring the decedent’s estate is dealt with in accordance with the decedent’s wishes and the law. The personal representative must apply to the Cayman Islands court for a grant of probate or a grant of letters of administration as appropriate.

(b) Consolidation and administration of the estate?

Following a grant of probate or a grant of letters of administration, the decedent’s personal representative has one year within which to realise and administer the estate and can use the order from the Cayman Court to prove his or her authority to deal with the deceased’s estate. Additionally, the decedent’s personal representative must, within one year after the grant of probate or letters of administration, file accounts with the clerk of the court, showing receipts and distributions of the estate. Such accounts will be open to inspection by any person beneficially interested.

(c) Distribution of the estate to heirs?

The Cayman Islands follows freedom of testamentary disposition. There are no forced heirship rules, elective shares or community property in the Cayman Islands. The Succession Law provides for how the chattels and residuary estate of an intestate are distributed among the surviving spouse and children, or other close relatives if there is no spouse or children.

(d) Settlement of the decedent’s debts and payment of any taxes and fees?

There is no estate tax or inheritance tax in the Cayman Islands. The decedent’s personal representative is responsible for ensuring payment of all established or proven debts due from the estate to private or public creditors.

Planning considerations

Are there any special considerations specific to your jurisdiction that individuals should bear in mind during succession planning?

English common law rules on conflicts of law apply, meaning that the law of the jurisdiction of immovable property will apply to the disposition of such property, and the law of the decedent’s last domicile will apply to movable property. Consequently, the validity of the decedent’s will is determined by the law of the decedent’s last domicile. The decedent’s domicile is determined according to English law. Legitimate children take the domicile of their father, whereas illegitimate children take the domicile of their mother. Domicile is changed by moving to a new place with the unequivocal intention to reside permanently and indefinitely in that new place. There is no forced heirship, elective shares or community property in the Cayman Islands.

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