Overview of Wills in the Cayman Islands 2024 Update

Succession laws in the Cayman Islands are based on the principle of testamentary freedom, which means that a person can, if not incapacitated, choose how their estate is dealt with after their passing, but only if they have a properly drafted and valid Will in place. If a person dies without a Will in place, then they will be considered to have died “intestate” and their assets will be passed on in accordance with the applicable rules and proportions set out in relevant provisions of the Succession Act (2021 Revision). However, the beneficiary entitled to receive the assets under this legislation may be a person that you do not wish to inherit your assets.

Benefits of a Will
As the saying goes “you can’t take it with you”, but with a properly drafted Will you can at least decide what you wish to happen to “it”, whether it be moveable or immovable property.
A properly drafted and validly executed Will allows you to document your wishes and appoint a trustworthy representative, known as an executor, who will be responsible for administering your estate and giving legal effect to your last wishes. Having a formal Will in place may help to avoid the additional costs associated with dealing with an intestate estate.
Another benefit of a properly drafted Will is the ability to incorporate a testamentary trust allowing you to decide when a beneficiary is able to take control of the estate assets. This type of trust is particularly useful in situations where a beneficiary is a minor and may not be mature enough to receive and manage a vast amount of inheritance.

Formalities of a Cayman Will
In the Cayman Islands, the validity of a Will depends on strict compliance with the relevant statutory requirements as set out in section 6 of the Wills Act (2021 Revision).
Broadly speaking, for a Will to be valid:

1. the person making the Will, known as the testator, must be of sound mind, at least 18 years of age, and must not be under any undue influence or coercion whilst making the Will.
2. it must be in writing;
3. the testator (or by some other person at their direction) must sign the end of the Will;
4. the testator must sign the Will or acknowledge their signature in the presence of two witnesses present at the same time. Importantly, these witnesses should not be the beneficiaries; and
5. the witnesses must attest and subscribe the Will in the presence of the testator.
Whilst some of the requirements appear straightforward, there are plenty of pitfalls in the drafting, signing and execution process which could result in the Will being deemed invalid or challenged during the probate process.

Whilst it is always recommended to create a Will using your legal name, it can be possible to find a Will legally valid if the Testator uses a name that doesn’t match their legal name. In the recent decision of Smith v Smith et al -G 135 of 2020 the Honourable Justice Asif K.C. ruled on 12 June 2024 that:

“the crucial features for a will to be valid are the identification of the testator, however that is done, coupled with the testator’s intention that the document shall have testamentary effect.”

In this particular case the Testator created the Will using a name that was different from his legal name (he added his stepfather’s surname to his own). The Court found that even though it wasn’t his legal name, it was easy to show that the Will was valid because it was a name that he was known to use, and he was easily identifiable through other means.

Other issues which ought to be considered include the location of the estate assets and/or whether the testator is domiciled in the Cayman Islands, as legal advice may be required from other jurisdictions.

Pursuant to the Formal Validity of Wills (Persons Dying Abroad) Act, 2018, the legislation requires individuals domiciled outside of the Cayman Islands to execute a valid foreign Will dealing with movable property with a Cayman Islands connection such as shares in a Cayman Islands company as long as certain conditions are met.

Importance of Attorney’s Expertise
Whilst creating a Will might seem straightforward, the expertise and guidance of a qualified attorney are indispensable in ensuring that your final wishes are accurately documented, legally binding, and aligned with the laws of the Cayman Islands.

The Honourable Justice Doyle summed up the position well in his closing remarks in this recent Judgment In the Estate of Robert Michael Hamaty, Deceased – FSD 249 of 2021):

“If there is a lesson to be learnt from this case, apart from the importance and desirability of family unity, it is that it is well worthwhile spending money on practicing lawyers qualified in the relevant jurisdiction to get things right and to ensure that testamentary documents are duly prepared, signed and attested. It is often a false economy to try and undertake important legal matters without the benefit of assistance from duly qualified independent lawyers.”

By seeking professional legal counsel, you provide yourself and your loved ones with peace of mind, knowing that your estate will be handled according to your intentions, thus avoiding potential disputes and legal complications in the future. HSM has extensive private client experience and can assist with preparing, maintaining and executing Wills.