Where a person dies leaving any assets (including shares) in the Cayman Islands, it is not possible to deal with those assets without first obtaining a grant of representation from the Grand Court of the Cayman Islands. This rule applies irrespective of where the deceased died, where they resided during their lifetime, and whether or not they left a Will.’
It is preferable for a deceased person to have left a Will, thus ensuring their assets pass in accordance with their wishes rather than a statutory formula. However, where a person has left instructions as to how their estate should be distributed, questions can arise as to whether such instrument, and the manner in which it was executed, satisfies the formalities required for it to constitute a valid Will. As a result, there are many instances where uncertainty, due to formal requirements not being observed, has impacted the administration of an estate, increasing costs and potentially meaning that assets pass other than as the testator (the person executing the Will) had intended.
The Cayman Islands has recently taken a more flexible approach to recognising the validity of Wills for persons domiciled or habitually resident outside the jurisdiction. The Formal Validity of Wills (Persons Dying Abroad) Law, 2018 (the Law) came into force in early 2019. The Law replaced the common law rule which required that a Will disposing of movable property such as shares, must be executed according to the Law of the country in which the testator was domiciled at death. In contrast, the law now provides that a Will is valid where it conforms with any of the following:
The Law makes it easier for foreign persons to make a Will with regard to their Cayman assets, and is a welcome reform in the Cayman Islands for foreign investors seeking to establish Cayman structures. Clients wishing to make a Will specifically in respect of their Cayman assets can now do so in accordance with Cayman laws, which broadly require that a Will be executed at the end of the document in the presence of two witnesses.
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Wills & Probate in the Cayman Islands