British Virgin Islands: The Law On Wills In The British Virgin Islands

Advantages of making a Will

  1. The drafting of your Will must be precise and undertaken with great care. This is of particular importance if you have assets in multiple jurisdictions, or you are resident in one jurisdiction, but have assets in another jurisdiction. The advantages of making a Will are:

    1. You have the opportunity (barring forced heirship rules) to set out how your assets are to be distributed on your death - who gets what and in what proportion; and
    2. You have the opportunity to decide and name someone who you think is responsible and who you can trust to administer the estate - collect the assets and distribute them to the beneficiaries of your estate;

Matters to consider before drafting a Will

  1. Before drafting a Will, the lawyer responsible for its preparation must consider the following:

    1. Your domicile;
    2. Essential validity of the Will;
    3. Formal validity of the Will;
    4. Capacity of the testator; and
    5. Where the assets are located.


  1. It is always necessary to establish your domicile before executing a Will which disposes of movable properties, for example, shares in a BVI company. This is essential as the validity of the Will and your capacity are determined by your domicile.
  2. The law assigns a domicile of origin to every person at birth. A legitimate child's domicile of origin would be that of his/her father and an illegitimate child's domicile of origin will be that of his/her mother. The domicile of origin prevails until a new domicile has been acquired. A person can change his domicile from that of his domicile of origin. To change domicile, the person must establish residence and an intention of permanent or indefinite residence.

Essential Validity & Governing Law

  1. Essential validity is concerned with your ability to dispose of your assets by Will. The rules vary according to whether the property is movable (shares, money, jewelry, art etc.) or immovable (land and anything affixed to it).
  2. Gifts of movable property are governed by the law of your domicile while those relating to immovable property are governed by the law of the location of the property.
  3. The distinction is important when drafting the Will. For example, shares in a BVI company are located in the BVI. However, if the testator is domiciled in a foreign country, that country's laws will determine the validity of a gift of the shares. This is particularly important if you are domiciled in a country that has forced heirship rules which mandate that a portion of your estate must be given to specified beneficiaries, usually the surviving spouse and children.
  4. While BVI law has complete freedom of testamentary disposition, the lawyer drafting the Will must be mindful of the foreign element in disposing of the shares. If your Will includes gifts of BVI shares to a beneficiary who is not one of the designated beneficiaries under the laws of your domicile, or excludes a beneficiary who is a designated beneficiary under the laws of your domicile, the Will is not valid.
  5. Similarly, a BVI Will disposing of land in a foreign country will have to comply with the laws of the place where the land is situated and any attempt to avoid those laws by Will, will also be in vain.
  6. The guiding principle in relation to essential validity, as in all aspects of dealing with foreign assets, is that you should take and be guided by expert advice from lawyers in the jurisdiction of the governing law of each gift.

Formal Validity

  1. The law governing the formal validity of a Will, no matter where executed, depends on the type of asset being disposed of. At common law the formal validity of a Will in relation to movables (personal property such as cash, jewelry, artwork etc.) is governed by the law of your domicile the time of making the Will or at the time of his death while, the formal validity of a Will disposing of real estate is governed by the law of the country where the real estate is located.
  2. Obvious practical difficulties will inevitably arise where the testator has both personal property and real estate in different countries. The formal validity of the Will may have to be judged by the laws of different countries depending on where the various assets are located.
  3. To be valid under BVI law the Will must be signed by you in the presence of two witnesses who must also sign the Will. The Will should be dated but does not need to be notarized. Additional formalities such as notarization, may be required where the Will deals with property governed by the law of a country other than the BVI. Accordingly, great care must be taken by the lawyer drafting the Will to ensure that a Will disposing of foreign assets complies with the requirements for formal validity under the laws of all relevant countries.
  4. Failure to comply with these basic rules can result in the gifts made under your Will failing and falling into your residuary estate or intestacy.


  1. Capacity to make a Will relating to movables is determined by the law of your domicile. There are no decided cases on the time when capacity is determined. The better view is that capacity is determined at the time of making the Will, not the date of death.
  2. Capacity in relation to immovable (real estate and anything affixed to it) is determined by the law of the location of the asset being disposed of.

Location of Assets

  1. You need to disclose the situs/location of all the assets which are to be disposed of by your Will to your lawyer. The location of both of movable and immovable property is determined by their physical location, but this is not conclusive. The position can be varied by statute. For example s. 245 of the BVI Business Companies Act stipulates that:

    "For the purposes of determining matters relating to title and jurisdiction but not for purposes of taxation, the situs of the ownership of shares, debt obligations and securities of a (BVI) company is in the Virgin Islands."
  2. The BVI courts, unsurprisingly, have routinely treated this provision as giving the BVI courts authority to deal with issues relating to ownership of shares. As a consequence, a registered agent will only act on the basis of a grant of probate or administration issued by the BVI court. This should be clearly understood by any person preparing a Will disposing of shares in a BVI company.
  3. The treatment of shares in a BVI company therefore requires special attention to ensure that your intentions are not defeated by, say, forced heirship rules under the place where you are domiciled or non-compliance with the foreign laws on issues of formal validity.


  1. Every Will made by a man or woman is revoked by his or her marriage. A subsequent marriage invalidate a previous Will.

Matters to consider for preparation of the Will

Appointment of executors

  1. An executor does not have to be a resident of the BVI. An executor can be an individual or a company. If a company is to be appointed as an executor, the company must be a trust corporation as defined by the BVI Trust Corporation (Probate and Administration) Act. A trust corporation must hold a class 1 trust licence). A trust corporation can apply for and obtain a grant of probate in its name. If a company, other than a trust corporation is appointed as executor, the court will not grant that company probate but rather will grant letters of administration with Will annexed to the company's nominee.

Jointly held property

  1. You must disclose full information on the ownership of jointly held property. If the property is held as joint tenants, the property will pass directly to the other joint tenant on the death of the testator. Any attempt to dispose of the property held as joint tenants might fail, unless there is sufficient evidence of an intention to sever the joint tenancy. On the other hand, if property is held jointly by you and another as tenants in common, you can dispose of his/her share of the property by his/her Will.

Partial Intestacy

  1. You should ensure that all of your assets are disclosed to the lawyer drafting the Will, and specify which, if any, are covered by other instruments such as Trusts or foreign Wills - if an asset is not covered it falls to be distributed in accordance with the law of the place where you die domiciled and not by the terms of your Will.


  1. Care should be taken in relation to the revocation clause of the Will. A Will limited to BVI assets should revoke only previous Wills and codicils insofar as they relate to those assets. If you make a Will in another jurisdiction after you have made your BVI Will, that foreign Will should expressly state that all previous Wills and codicils except for your BVI Will (refer to it by date) are revoked.

Conclusion on Wills

  1. In conclusion, great care must be taken in drafting wills with foreign elements. Where you have assets in multiple jurisdictions, or where local assets are subject to foreign laws you should make a Will or multiple Wills ensuring insofar as it is necessary that -

    1. The Will dispose of the foreign assets/BVI assets in accordance with the relevant governing law;
    2. All your assets are covered by your Wills;
    3. Each Will is valid in accordance with the relevant governing law; and
    4. Subsequent Wills do not revoke prior Wills by operation of law.
    The most important consideration is that you obtain expert legal advice in all relevant jurisdictions, and ensure that your advisers communicate with each other on all foreign law elements in your Will or Wills.
  2. We recommend that a person who has assets in the BVI such as shares in a BVI company, or BVI real estate should make a Will and in particular a BVI Will. This will result in the process of applying for and obtaining a grant from the BVI Court simpler and easier.

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.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (please 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