Cayman Islands: Testamentary Freedom, Wills And Succession

Last Updated: 1 September 2016
Article by Morven McMillan

Testamentary freedom has been in the legal press again recently, this time as a consequence of the introduction of the EU Succession Regulation (No.650/2012) in Europe and the debate as to whether the U.K. would opt in, or opt out, of it.

The regulation binds EU member states that have opted in and in summary, provides that the law applicable to succession to a deceased's worldwide estate will be that of the deceased's 'habitual residence', which is to be established by reference to all the circumstances of the deceased's life in the years up to the time of his death. It expressly excludes questions relating to trusts, tax and matrimonial property. The aim is to create a more uniform approach to succession in contrast to the position previously, where some member states would determine the applicable law by reference to the location and nature of the assets of the estate, or by the domicile of the deceased. This gave rise to conflicts of laws issues which would hold up the administration of the estate and increase the costs of doing so. Worthy as that aim is however, it remains open to question the extent to which the regulation will achieve consistency of approach, particularly given that the U.K., Ireland, Switzerland and Denmark have opted out.

Although the regulation does not have direct application in the Cayman Islands, the discussion about it has brought the topics of wills and succession and more particularly, testamentary freedom, domicile, residence and cross-border estates, sharply into focus once again, issues which are of relevance to practitioners here.

The basic principle in English common law jurisdictions, like the Cayman Islands, is that a testator can dispose of his or her estate in whatever way he or she wishes. Like many basic principles, this is subject to a number of caveats and conditions. Testamentary freedom and the rationale underpinning it were described in the English case of Banks v Goodfellow (1869-70) LR 5 QB 549, at 563, in this way: "The law of every civilised people concedes to the owner of property the right of determining by his will, either in whole or in part, to whom the effects which he leaves behind him shall pass ... The English law leaves everything to the unfettered discretion of the testator ... the common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law."

In contrast to testamentary freedom, regimes exist including forced heirship1, elective shares2 or community property3 dictating the disposition of property on death. Within those broad categories lies a varied and complex network of rules, regulations and convention governing property disposition on death in each individual country or state4. In short, each regime operates to limit testamentary freedom by preventing disinheritance, usually of a testator's surviving spouse and/or children. Those limitations can affect not only individuals and the extent of their inherited wealth, but also the operation and disposition of family businesses when the owner dies.

Other jurisdictions like Guernsey have moved more recently to abolish their forced heirship regimes5, recognizing that testamentary freedom is an attractive concept for wealthy testators who may wish to settle there and adopt Guernsey as their domicile.

The question of a testator's domicile can be vitally important. Domicile may be key not only to the availability of testamentary freedom but also to the determination of the validity of the will, the liability to estate or inheritance taxes, the entitlement to and proper forum for taking out the grant and to family provision claims6.

Deciding domicile is not as straightforward as simply looking at where the deceased was living at the time he died, even in cases where the deceased may have been living in a particular place for several years. The general rule here in the Cayman Islands is that a child will take the domicile of his father, unless illegitimate in which case he takes the domicile of his mother. As an adult, a person may acquire a domicile of choice which is different to the domicile of his father. This is where disputes often arise in succession claims. It is not easy to acquire a domicile of choice: As I have already mentioned, it is not only defined by where the testator lives, but requires evidence of an unequivocal intention to reside permanently and indefinitely in that country, such that he abandons his domicile of origin7.

Further, in order to avail oneself of freedom of testamentary disposition in English common law jurisdictions, a testator must have capacity to do so, in other words, he must be an adult8 and he must possess a certain level of understanding of what he is doing by making a will. This level of understanding is referred to as 'testamentary capacity' and despite close judicial scrutiny over the years, the basic test for testamentary capacity remains, broadly, as set out in Banks v Goodfellow.

As evidenced in several cases in England since Banks, testamentary capacity has repeatedly vexed not only lawyers and the courts, but also experts in the field of psychiatry, medicine and dementia, alcohol and drug dependencies. It has on occasion, led to long drawn out battles lasting several years costing millions of dollars and often involving the most intense scrutiny of the minutiae of family and business relationships, much of which ends up being played out in the press9. The question of whether a testator had crossed "an imprecise divide"10 at the time he executed his will is notoriously difficult to assess after the fact; after all, the testator is no longer around to be subjected to medical testing, although there is often a wealth of anecdotal evidence to be assessed. As Lord Cranworth described it so eloquently, "There is no possibility of mistaking midnight from noon, but at what precise moment twilight becomes darkness is hard to determine."11

 A testator must know and approve of his will's contents12 but as Chadwick LJ put it in Hoff v Atherton [2005] WTLR 99, "Where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not." Not surprisingly, a claim that a testator did not know and approve of his will's contents is often run in conjunction with a claim of mental incapacity.

One example of when suspicion will be aroused is when a beneficiary under the will is instrumental in its preparation13. Another might be when there has been a fundamental and arguably irrational change in the testator's intentions between prior wills and a final will.14 Practitioners do also have to be alert to undue influence, another claim which is often run in conjunction with a claim of mental incapacity. Clients who are mentally and physically frail may be more vulnerable to bullying from those who wish to take advantage of them. Practitioners are encouraged to meet elderly clients alone and not in the presence of any of the intended beneficiaries of the will and enquiries should always be made about any lifetime gifts that may have been made by the testator. Appeals to a testator's affection would not be enough, the undue influence has to be sufficient to "overpower the volition"15 so there is an evidential burden to discharge for anyone making such an allegation.

Testators with assets all over the world are often advised to make separate wills in each country where assets are held. These local wills should comply with the relevant local laws. Problems do occasionally arise, usually as a consequence of one of the wills unintentionally revoking an earlier will. Practitioners here who are asked to draft a will to deal with Cayman Islands assets should be provided with copies of all other wills to ensure the Cayman law will is drafted accordingly.

While succession claims only rarely come before the Cayman Islands' court, cross border issues and conflicts of laws do arise after the death of a client in relation to the administration of assets held here, particularly if there is a question over the client's capacity, domicile or testamentary freedom. Given that we are involved in an international financial services industry, it is incumbent on us all to be alert to potential issues and to areas of concern and to take advice in the relevant jurisdiction if questions do arise.


1 Eg Civil law jurisdictions like France or Brazil and Islamic Shari'a law countries

2 Eg New York and Florida

3 Eg Switzerland or California

5 'Succession and Forced Heirship Disputes' by Andrew De La Rosa in ' International Trust Disputes', OUP 2012.

6 The Inheritance (Guernsey) Law 2011

7 Eg in England and Wales under the Inheritance (Provision for Family and Dependents) Act 1975 (as amended)

8 Holliday v Musa [2010] EWCA Civ 335 and Morris v Davies [2011] WTLR 1643

9 Unless he is a serving member of the armed forces on actual military service or a mariner at sea s7 Wills Law (2004 Revision)

10 See for example the Jimi Hendrix and Brooke Astor estate disputes in the USA

11 Sharp v Adam [2006] WTLR 1059

12 Boyse v Rossborough (1857) 6 HL Cas 2, cited in Sharp v Adam

13 Wyntle v Nye [1959] 1 All ER 552

14 Fuller v Strum [2002] 2 All ER 87

15 Boudh v Bodh [2007] EWCA Civ 1019

Originally published in SECOND QUARTER 2016|ISSUE NO.43

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Morven McMillan
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions