Cayman Islands: Chambers And Partners: Private Wealth Guide 2017

Last Updated: 19 September 2017
Article by Morven McMillan
Most Read Contributor in Cayman Islands, October 2017

1. TAX

1.1 Tax Regimes

The Cayman Islands is made up of three islands: Grand Cayman, Cayman Brac and Little Cayman. They are located in the Western Caribbean Sea, approximately 500 miles south of Miami, Florida. The capital city, George Town, is located on the south western shore of Grand Cayman.

The Cayman Islands is a British Overseas Territory, run as a parliamentary democracy with judicial, executive and legislative branches. The Cayman Islands has its own constitution and bill of rights. The local parliament, called the Legislative Assembly, has 18 elected members from whom a Premier, Deputy Premier and Speaker are appointed.

A Governor, appointed by the Government of the United Kingdom, presides over meetings of the cabinet and has special responsibility for defence, external affairs, internal security, the police and the civil service. The Deputy Governor, who, along with the Attorney General is a non-voting ex officio member of the Legislative Assembly, is appointed by the Governor pursuant to advice from the Crown. The Governor also appoints members of the judiciary.

The Cayman Islands has a sophisticated judicial system presided over by a Chief Justice and has a number of full- and part-time judges and justices of the peace, some of whom serve as lay magistrates. There are three courts: the Summary Court, Grand Court and Court of Appeal. The Grand Court, which has a dedicated Financial Services Division, has jurisdiction over all civil claims in the Islands. From there, appeals lie to the Court of Appeal which sits in the Islands three times a year. Final rights of appeal, in certain circumstances, lie to the Judicial Committee of the Privy Council in London.

There are no income, capital gains, corporate, wealth, withholding, estate or inheritance taxes levied in the Cayman Islands. There are import duties payable on most items brought into the country. There is stamp duty payable on the purchase of land in the Islands and levied on certain documents executed within, brought into or produced before the court in the Islands. The cost of stamp duty on deeds and documents ranges from KYD15 to KYD100.

The stamp duty calculated on the purchase of property is currently 7.5% of the purchase price or the market value of the property, whichever is higher, and a property assessment may be carried out by the Lands and Survey Department to establish which is the greater. There are time limits for the payment of stamp duty on property purchases, with fines and penalties for late payment. There are stamp duty exemptions available which currently do not apply to overseas first-time buyers.

1.2 Recent Developments or Forthcoming Regulatory Changes

The Cayman Islands is an 'early adopter' of the Common Reporting Standard. At the time of writing it has signed 36 bilateral tax information exchange agreements and agreed a Model 1 Inter-governmental Agreement with the USA. It has entered into bilateral tax treaties with 27 European Union Member States under which it reports savings income pursuant to the European Union Savings Directive.

The Cayman Islands has a dedicated Tax Information Authority established in 2005 to assist in the discharge of the country's tax information exchange obligations.

2. SUCCESSION

2.1 The Role of Notable Cultural Factors in Succession Planning

Cayman Islands succession law is based upon the principle of testamentary freedom, meaning that, subject to a person having the necessary capacity to do so, a testator or testatrix can leave his or her estate in his or her will to anyone that he or she wishes.

The relevant statutes in connection with succession matters are the Wills Law (2004 Revision), the Succession Law (2006 Revision) and the Probate and Administration Rules (2008 Revision).

Broadly, these laws set out the practice and procedure for obtaining grants of probate, letters of administration and resealing of foreign grants, as well as the rules relating to the disposition of an intestate's estate. If a person dies leaving a will, the executors will apply for a grant of probate which will authorise them to gain access to the estate of the deceased and distribute it in accordance with the terms of the will. If a person dies without a will, various relatives in order of priority are entitled to take out the grant of letters of administration. There are other grants of representation available to deal with less common situations, for example, ad colligenda bona grants, if there is an urgent need for a grant to be issued or to preserve assets in the estate until such time as the person entitled to take out the grant is able to do so.

2.2 Forced Heirship Laws

When a person dies without a will, the intestacy rules provide that the surviving spouse will share the estate with the surviving children of the deceased. Closer relatives, starting with the parents of the deceased, will benefit in order of priority if no spouse or child survives the deceased.

The validity of a foreign will or lifetime gift and the administration of a deceased's estate will be determined in accordance with the laws of the deceased's domicile. The general rule in the Cayman Islands is that a child will take the domicile of his or her father, unless his or her parents were not married, in which case they take the domicile of their mother. This is called 'domicile of origin'.

As an adult, a person may acquire a domicile of choice which is different from the domicile of origin. Acquiring a domicile of choice requires evidence of an unequivocal intention to reside permanently and indefinitely in that country, such that a person abandons their domicile of origin, as per Holliday v Musa [2010] Civ 335.

2.3 Prenuptial and Postnuptial Agreements

Whilst there is no specific legislation in relation to pre- or post-nuptial agreements, the court is likely to afford them a similar status as the English Supreme Court in Radmacher v Granatino [2010] UKSC 42. This means that the court is likely to give weight to pre- and post-nuptial agreements in the division of assets upon divorce, but retains a discretion to ignore them if they are unfair to the children of the marriage or there was some injustice in the way that the agreement was reached between the parties, for example, because of deliberate non-disclosure of a significant asset, or only one of the parties to the agreement had the benefit of legal advice.

2.4 Marital Property

A couple can divorce in the Cayman Islands if they have been 'domiciled' there for at least a year on the date that he or she petitions for divorce. Domicile in this context means that one or other of the parties can demonstrate an intention to reside in the Islands permanently. Alternatively, a spouse can petition for divorce if they have been 'ordinarily resident' in the Islands for at least two years prior to filing the petition, regardless of where the other spouse lives.

Divorce in the Cayman Islands is based on the Matrimonial Causes Law (2005 Revision), the Maintenance Law (1996 Revision) and supplemental Matrimonial Causes Rules currently in their 2009 Revision. Parties in Cayman Islands divorce proceedings are still required to provide fault-based grounds for divorce, for example, adultery, desertion and unreasonable behaviour. There is no community property regime in force and the court will decide the division of assets on divorce, taking into account a number of factors set out in local statute and derived from the common law. Family law reform has been under discussion for some time but, so far, no draft legislation has been produced.

2.5 Effect of Transfer of Property on the Cost Basis of Property Being Transferred

Section 13(1) of the Cayman Islands Trusts Law (2011 Revision) (the "Trusts Law") provides for a presumption of lifetime effect, meaning that unless the trust instrument is expressed to be a will or codicil or to take effect only on the settlor's death, it will be presumed that the trusts and powers were intended to take effect immediately upon the property being vested in the trustee. Section 13(1) is expressed at s13(2) to apply, notwithstanding certain facts, including that the trust may have been created in order to avoid the application of laws relating to wills or succession on the settlor's death or during the lifetime of the settlor.

A great deal has been written about the Cayman Islands' firewall legislation, stemming in part from the fact that it was the first international financial centre to pass legislation of this nature. Passed into law in 1987, it is designed to insulate Cayman Islands trusts from attacks by forced heirs and those claiming against the trust by reason of a personal relationship with the settlor. This means that it is likely that Cayman Islands trusts will be protected against orders of overseas courts based on their domestic matrimonial or inheritance laws, as long as the relationship in question is with the settlor.

Section 90 of the Trusts Law stipulates that, if a trust is expressed to be governed by Cayman Islands law and has a jurisdiction clause in favour of the Cayman Islands court, all questions arising in relation to that trust will be determined in accordance with the laws of the Islands without reference to the law of any other jurisdiction by which the trust may be connected. Section 90 is stated to relate to, amongst other things, questions about the capacity of the settlor, any aspect of the validity or construction or administration of the trust including the powers, obligations, liabilities and rights of trustees, their appointment and removal, and the existence and extent of powers in the trust.

There are, however, a number of exceptions. Section 90 will not operate to validate a disposition of property which the settlor does not own, nor will it validate any testamentary trust or disposition which is invalid according to the laws of the testator's domicile.

Subject to the same conditions as are set out in s90, s91 provides, amongst other things, that no Cayman Islands trust will be void, voidable, liable to be set aside or defective in any fashion, nor is the trustee, any beneficiary or any other person to be subjected to any liability or deprived of any right because the trust avoids or defeats rights, claims or interests conferred by foreign law upon any person by reason of a personal relationship with the settlor, for example, by marriage. Section 93 of the trust law consolidates this point: if a foreign judgment is inconsistent with s91, that judgment will not be recognised or enforced by the Cayman Islands court.

3. TRUSTS, FOUNDATIONS AND SIMILAR ENTITIES

3.1 Types of Trusts, Foundations, or Similar Entities

The Cayman Islands introduced its first local trust law in 1967 and it has been regularly revised since then. It is currently in its 2011 Revision and, at the time of writing, another revision is being presented to the Legislative Assembly in the coming weeks.

Cayman Islands trust law is based on the English Trustee Act 1925 but there are significant differences and so it should not be assumed that Cayman Islands trust law is identical in every way to English trust law.

As a common-law jurisdiction which has based its trusts law on that of England, the Cayman Islands court will have regard to the significant body of reported trusts cases, and equitable principle has been steadily built up in England and the common law jurisdictions since the early 19th century (and in England's case sometimes considerably earlier), much of which has been cited with approval and the principles applied in and by the Cayman Islands Grand Court.

3.2 Recognition of Trusts

Trusts are most commonly established in the Cayman Islands for estate and succession planning and can range from fully discretionary trusts, to provide for fixed interest, and life tenancies of income. Trusts may be created for individual beneficiaries who either currently exist or may do so at some time in the future; trusts may be created to benefit charities or they can be settled for non-charitable purposes. The perpetuities period for ordinary private trusts is currently 150 years.

Non-charitable purpose trusts are called 'STAR' trusts in the Cayman Islands and are subject to specific statutory provisions set out at Part VIII of the Trusts Law, which sets out the "Special Trusts – Alternative Regime" (hence the acronym 'STAR'). There is no specific charities statute in the Cayman Islands.

STAR trusts have proven to be a popular family business succession planning vehicle and also an ideal vehicle for philanthropic projects which would not fall within the strict definition of 'charitable purposes' as per the 'heads of charity' defined by Lord Macnaghten in Re Pemsel (1891) AC 531.

The principal features of a STAR trust, in summary, are as follows:

  • the objects can be persons or purposes or both;
  • they are not subject to the rule against perpetuities and so can exist for as long as the settlor wishes;
  • beneficiaries have no standing to enforce a STAR trust and thus, have no entitlement to information about it;
  • an enforcer is appointed and all rights to enforce the trust, and to receive information about it, are held by the enforcer, rather than by any beneficiaries of the STAR trust;
  • the rule in Saunders v Vautier (1841) Cr & Ph 240 has no application to STAR trusts, meaning, for example, that even if all of the beneficiaries are adults and of full capacity and are in agreement, they cannot call on the trustee to pay the trust property to them and bring the trusts of that property to an end.

3.3 Changes That Have Decreased or Eliminated the Benefits of Planning

Another key feature is the extent to which settlors may reserve certain powers to themselves (or grant powers to third parties) over key decisions in the administration of the trust. Settling wealth on trust by transferring legal title to a trustee who may be situated in a jurisdiction far away from the family's home is a highly significant decision for most settlors; often they have some nervousness in doing so and understandably wish to retain an element of influence over the administration of the assets after establishing the trusts. Alternatively, if they would prefer not to have those powers themselves, settlors often ask whether it would be permissible for other trusted individuals, such as family members or long-standing advisers, to have those powers conferred on them instead.

Those powers which may be reserved to a settlor or granted to a third party without invalidating a Cayman Islands trust are set out at s14 (1) of the Trusts Law, amongst which are powers to:

  • amend or vary the trust deed;
  • appoint capital or income;
  • give directions to the trustee over the purchase, holding or sale of the trust property;
  • appoint or remove the trustee, protector or beneficiary;
  • change the governing law and the forum for administration;
  • restrict the exercise of any powers or discretions of the trustee by requiring that they can be exercised only with the consent of the settlor or some other person that they nominate.

There is no requirement to register a trust in the Cayman Islands. The providers of trustee services are registered and regulated. Only 'exempted trusts' created pursuant to Part VI of the Trusts Law should be registered. This means that if a settlor wishes to apply for an undertaking from the Governor so that, subject to certain requirements, no duty or tax levied in the Islands will apply to any property in the trust for a period not exceeding 50 years from the date of the undertaking, the trust will have to be registered with the Registrar of Trusts. That register is not open to public inspection.

Whilst trusts in the Cayman Islands can be established for asset protection reasons, under the Fraudulent Dispositions Law (1996 Revision) a gift made with the intention of defeating a creditor is vulnerable to being set aside within six years of the date of the gift, on application to court by the creditor concerned.

The Cayman Islands has stringent anti-money laundering laws. Currently in force are the Proceeds of Crime Law (2014 Revision), the Money Laundering Regulations (2015 Revision) and detailed Guidance Notes. These laws set out the requirements for due diligence and 'know your client' that trustees and other financial services providers must perform in order to understand fully the transaction in which they are involved and the identity and source of funds.

In May 2017 the Cayman Islands introduced into local statute the Foundation Companies Law, allowing the formation of a new Cayman Islands vehicle, the foundation company. Although at the time of writing the statute does not have a commencement date, it is anticipated that the foundation company will be a highly flexible vehicle for achieving a wide range of private client, family office and philanthropic objectives.

3.4 Possible Tax Consequences of a Beneficiary or the Donor of a Trust, Foundation or Similar Entity also Serving as a Fiduciary

The financial services industry in the Cayman Islands is supervised and regulated by an independent body called the Cayman Islands Monetary Authority ("CIMA"). CIMA, subject to local statute, regulates banks, building societies and credit unions, trust companies, trust and corporate service providers, company managers, insurance companies, investment funds, fund administrators and securities investment businesses in the Cayman Islands. CIMA also approves individuals to act as directors, officers and managers of licensed entities and auditors of regulated entities.

For a trustee, it is a corollary of the assumption of responsibility for the administration of property for the benefit of others, that he or she will be liable for the performance of his or her responsibilities in relation to that property, subject of course to the breadth of the exculpatory provisions of the trust deed.

The Cayman Islands court has recognised the 'irreducible core' of trustee obligations described in the English court of appeal case of Armitage v Nurse [1998] Ch 241. As described by Lord Justice Millett:

"I accept the submission ... that there is an irreducible core of obligations owed by the trustees to the beneficiaries and enforceable by them which is fundamental to the concept of a trust. If the beneficiaries have no rights enforceable against the trustees there are no trusts. But I do not accept the further submission that these core obligations include the duties of skill and care, prudence and diligence. The duty of the trustees to perform the trusts honestly and in good faith for the benefit of the beneficiaries is the minimum necessary to give substance to the trusts, but in my opinion it is sufficient."

As in other English common law jurisdictions, when settling property upon trust, a settlor is entitled to place whatever limitation on the liability of the trustee that he or she wishes, save to the extent that such limitation would prejudice the "irreducible core" of obligations owed by the trustee to the beneficiaries to perform the trusts honestly and in good faith for their benefit. Thus, as long as an exculpation clause does not purport to exclude a trustee's liability for acts or omissions made dishonestly or in bad faith, a trustee will be entitled to rely upon an exculpation clause in defence of a claim in breach of trust. Thus, a settlor can validly exclude a trustee's liability for negligence, however gross it may be, but not for fraud.

The use of corporate fiduciaries is commonplace in the Cayman Islands. There is no statutory duty of care in the Cayman Islands. Broadly, a trustee must take such care as an ordinary prudent and vigilant person of business would take in the management of their own affairs, Speight v Gaunt (1883) 9 App Cas 1 and in the investment of trust assets, for example, a lay trustee was bound to act as an 'ordinary prudent man of business' when investing for the benefit of others 'for whom he felt morally obliged to provide', Learoyd v Whitely (1886) 33 ChD 347.

A paid trustee is, however, expected to exercise a higher standard of diligence and knowledge than an unpaid lay trustee and those who advertise themselves as specialists, in other words, professional trustees, have an even weightier duty of care, as per Bartlett v Barclays Bank Trust Co Ltd [1980] 1 Ch 515. As the judge in that case said, "a trust corporation holds itself out...as being above ordinary mortals... and is capable of providing expertise which it would be unrealistic to expect and unjust to demand from the ordinary prudent man or woman who accepts, probably unpaid and sometimes reluctantly from a sense of family duty, the burdens of trusteeship".

There are provisions in the Trusts Law which relate to the investment of trust assets but broadly, in modern structures, investment of trust assets is governed by the terms of the trust instrument. If a settlor wishes to settle their family business on trust and for the trustee to be involved in the conduct of that business, the trustee will first need to agree and then be empowered expressly in the trust deed to do so, usually by way of an express power to carry on a trade in any part of the world.

There is no statutory requirement that trust assets should be diversified and, often, any common law duty to diversify is expressly excluded by the terms of the trust instrument. Many settlors prefer to retain a power of investment or a power to direct the trustee or require settlor or protector consent in the exercise of the power of investment; others retain a power to appoint an investment manager of their choosing or occasionally the trustee is permitted by the terms of the trust to delegate its power of investment to a third-party investment manager. Even if the trustee is not responsible for investing the trust assets, it will remain duty-bound to keep an eye on investment performance and the conduct of any investment manager in order to discharge its 'irreducible core' duties to the beneficiaries. Some families will document investment guidelines and profile for the trust assets in discussion with the trustee.

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