The Law revises the rules which apply when determining whether or not a will made by a person who was domiciled outside the Cayman Islands at the time of their death, but who owned assets in the jurisdiction, has been properly executed for the purposes of Cayman Islands law. The Law supersedes and abolishes the common law rules which previously applied, giving effect to new rules based on the Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions, 1961.
Under the common law, the formal validity of a will disposing of "immovable" property (for example, land or real estate) is determined by the law of the jurisdiction in which the property is situated. On the other hand, the formal validity of a will disposing of "movable" property (for example, shares in a company) is determined by the law of the jurisdiction in which the testator was domiciled at the time of death. In particular, this second arm could lead to inconsistency and ambiguity when dealing with the administration of the estates of deceased foreign investors holding shares in Cayman entities.
The Law will afford a much more consistent approach from now on; under its terms, a will (which includes any testamentary instrument or act) is properly executed if its execution conforms to:
- Cayman law; or
- the law in force in:
- the place where the will was executed, or
- the place where the testator was domiciled or habitually resident at the time the will was executed or the time of the testator's death, or
- the state of which the testator was a national at the time of execution or on death.
The only exception to the above is that the execution of a will disposing of immovable property in the Cayman Islands must conform to Cayman Islands law.
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.