Making a Will in the Cayman Islands

“There is something about wills which brings out the worst side of human nature. People who under ordinary circumstances are perfectly upright and amiable, go as curly as corkscrews and foam at the mouth, whenever they hear the words 'I devise and bequeath.”

These observations by Dorothy L. Sayers’ in her 1930 novel, were as true then as they are now. Wills and disputes over wills and estates invariably bring out the worst side in many and are perhaps comparable only to divorce in the hostility and bitterness with which such disputes are pursued. A recent poll in the UK suggested three out of four individuals will be involved in some form of estates dispute in their lifetimes.

The principal areas of dispute in regard to wills are the following:

• The will has not been properly executed.

• The testator has been subject to undue influence to write the will in a particular way.

• The testator lacked testamentary capacity to make the will at the time.

With due care and attention, it should be possible to minimize the possibility of challenges to the validity of the will on each of these grounds. We consider in this article the proper execution of a will under Cayman Islands law.

Execution of the will – in its simplest terms

Section 6 of the Cayman Islands Wills Act (2021 Revision) (the “Act”) provides in its material part:

• No will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned; that is to say, it shall be signed at the foot or end thereof by the testator, or by some other person, in the testator’s presence, and by the testator’s direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and such witnesses shall attest and subscribe the will in the presence of the testator, but no form of attestation shall be necessary. . . . .

What this calls for in terms of the actual mechanics is quite simple, and can be broken down as follows:

1. The testator and two suitable witnesses must remain together (in the same room) and attentive throughout the process so as to meet the “presence” requirement;

2. The testator must sign the will in the “presence” of two witnesses;

3. Each of the two witnesses in turn then sign the will again in the “presence” of the testator and each other.

The components of a validly executed will

What is the “writing” referred to in s.6? Section 2(1) of the Interpretation Act (1995 Revision) defines “writing” as including “printing, lithography, typewriting, photography and other modes of representing or reproducing words or figures in visible form”. Note that one cannot have a purely electronic will that exists only in MSWord, pdf or other electronic format.

There are no restrictions as to on what the will may be written, and in the case of holographic wills, i.e. a will entirely hand written, signed by the testator but lacking witnesses, probate has been granted on wills written in various forms:

• In a 1989 Australian case, the will was written in Ukrainian on the wall next to the testator’s bed and a photograph of it was accepted for probate purposes.

• In a well-known 1948 Canadian case, a Saskatchewan farmer, Cecil Geo. Harris, trapped under his tractor, and later died, was found to have scratched into the tractor’s fender, "In case I die in this mess I leave all to the wife.” The fender was probated and stood as his will.

The “signature”

The testator will usually sign with their customary signature, although the form the signature takes has been widely interpreted, and they may sign in any form provided it is intended to be their signature. Valid signatures have included a mark, initials, an incomplete signature, inked thumb prints, etc.

“[B]y some other person, in the testator’s presence, and by the testator’s direction”

It is not uncommon for a gravely ill, weak or debilitated testator (i.e. a “deathbed will”), to be unable to sign themselves and to require some other person sign the will on their behalf. Equally, in accordance with pandemic imposed social distancing protocols, it may be necessary that the will be executed by a third party while the testator observes through a window.

There are no restrictions on who may sign on the testator’s behalf, and the person signing may either sign in their own name or that of the testator. All the other formalities of witnessing must be observed and the circumstances of the signing should be reflected in an attestation clause. What is essential is that the testator must make some positive and discernible communication (verbal or non-verbal) that they wish their will to be executed for them by a third party; mere acquiescence or passivity is insufficient.

“[S]uch signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time”

The testator’s signature must be made or acknowledged in the “presence” of at least two witnesses, present at the same time. The witnesses do not need to know that the document is a will, but must have the opportunity to see the testator’s signature. If the testator has not signed in the presence of both witnesses then he must acknowledge his signature in their simultaneous presence. Presence means physical presence i.e. in the same room, and social distancing requirements may impose difficulties.

“[S]uch witnesses shall attest and subscribe the will in the presence of the testator, but no form of attestation shall be necessary”

The attestation of a will by the witnesses is to take place in the “presence” of the testator, that is to say if the testator had chosen to look he would have seen the witnesses sign; it is not necessary that the testator should actually see the witnesses sign.

While the Act expressly says “no form of attestation shall be necessary”, in granting probate the Probate Court will require evidence of the due execution of the will, and typically an attestation using the following tried and true formula is employed:

“signed by the testator in our joint presence and then by us in his”.

It is the practice in some jurisdictions, to have the witnesses additionally swear an “affidavit of attestation”, confirming the due execution of the will and their witnessing of it. While not followed in the UK, this is good practice, and may assist in the event of the death, incapacity, or inability to locate one or more of the witnesses to the will in the event the will is challenged. While there is a presumption of regularity and due execution of the will based on a proper attestation clause, it remains that the onus of establishing due execution of the will, whether by presumption or by positive evidence, rests on the person applying for probate on that will.

There are no restrictions on who may be a witness, provided they are able to attest both mentally and physically that they were “in the presence of the testator” when the testator executed the will. It follows that an individual who is blind, drunk, unconscious or otherwise incapacitated may not act as a witness. It is important to note however that under s.10 of the Act, bequests in the will to any witness, the witness’s spouse or civil partner, are null and void, although that individual remains a valid witness to the will.

Section 11 of the Act expressly provides that an executor may be a witness to the will.

It is good practice to positively identify the name of the witnesses, by recording their name in print, together with their address and occupation / place of business, in the event they have to be contacted later.

Position of the signature of testator

By s.6 of the Act there is an express requirement that the testator’s signature appear at the “foot or end” of the will. While gaps or blank spaces between the end of the will and the testator’s signature will not affect the validity of the will, it is the case that any disposition or direction which is underneath or follows the testator’s signature will not be valid or effective. Accordingly, schedules or appendices to the will following the testator’s signature are to be avoided.

Where the will is comprised of multiple pages, there is no requirement that the testator sign each page, however out of an abundance of caution and by way of support that the testator had knowledge of and approved the will, it is good practice that the testator and also the witnesses sign each page.

It goes without saying that having the testator’s signature and those of the witnesses on a “standalone” page i.e. separate from the substantive portion of the will, is to be scrupulously avoided, particularly where those other pages of the will are not signed by the testator.

There is no requirement as to the position of the witnesses’ signatures, whether next to or following that of the testator, however it is preferable that they sign below the testator, consistent with the presumption that that is the order in which the parties signed.

Dating the will

There is no statutory or common law requirement in the Cayman Islands that a will be dated, but obviously it is good and proper practice that a will be dated, both for practical purposes of applying for probate in identifying the will, and in the event multiple wills are found and there is a consequent need to establish which is indeed the last will of the testator. The absence of date may give rise to difficulties (i) of identification where the will speaks of bequests of items which the testator refers to as being owned at the date of execution, and (ii) in the event the will seeks to appoint a guardian of a minor or individual under a disability.

The preferred practice is for the date of execution to appear above the signature of the testator.

Codicils

A codicil is a testamentary document which supplements the original will, by adding to it, amending it or revoking it in whole or in part. Because a codicil is required to comply with the formal execution requirements applicable to a will as set out above (s.16 of the Act), it is always preferable that any substantive changes to the will are effected by the testator making a new will, not by a codicil.

Revocation of wills

A testator is always at liberty to revoke a will. Revocation is effected:

• Automatically upon the marriage or entry into a civil partnership by the testator as provided for by s.13 of the Act.

• By the execution of another will declaring an intention to revoke the earlier will (s.15 of the Act).

• By the testator burning, tearing or otherwise destroying the will, or by someone doing so in the testator’s presence and at his direction, and with the intention of revoking the will (s.15 of the Act).

Summary

The foregoing is an overview of the mechanics of executing a valid will in the Cayman Islands.

The fundamentals and best practice are quite simple and if followed the possibility of challenges to the execution of the will on technical grounds will be minimized.