Where there’s no will – there’s a way

Most people know that making a will is the “adult thing” to do, especially when children and other dependents are involved. However, like most unpleasant things in life, we tend to put it off for as long as possible.

In some tragic cases life can end suddenly and unexpectedly, or a person can be struck down by illness and lose their mental capacity which would otherwise prevent them from creating a valid will. So, when there is no will, what is the way?

When an individual dies without leaving a will, or if they leave an invalid will, what happens to their property in the Cayman Islands and is responsible for administering their estate?

The law dictates the following people in order of priority, are entitled (but not compelled), to apply to the court to administer the estate:

  • The surviving spouse;
  • The children of the deceased (or the grandchild where a child has died before the deceased);
  • The father or mother of the deceased;
  • The full-blood brothers or sisters of the deceased (or their children if they have died before the deceased);
  • Those persons entitled to a share of the estate; and
  • A creditor of the deceased, or any other person who may have a beneficial interest in the estate.

While the above group of people may be perfectly appropriate in some cases, in others, they may be wholly unsuitable. For example, the surviving spouse may have become estranged from the deceased, or old sibling rivalries might bubble to the surface following the death of a parent, which could paralyze the administration of the estate with expensive and protracted litigation.

If the individual had stopped to think about it for a moment, they probably would have nominated a trusted friend or an impartial professional to act as their executor. The problem is that unless you make the choice during your lifetime while you have full mental capacity, the law makes the choice for you after you die.

Let us now turn our attention to who gets what. This will depend on the personal circumstances of the deceased, so I will set out a few of the most common scenarios below:

Deceased dies leaving a spouse and children (and grandchildren)

  • The spouse takes 100 percent of the personal chattels such as vehicles, furniture, household articles, etc.;
  • If the estate is valued under CI$20,000, the spouse takes 100 percent of the “residue” of the estate (meaning all the assets which remain after the debts and administration expenses are paid off);
  • If the estate is valued over CI$20,000, the spouse takes 50 percent of the residue of the estate and the remaining 50 percent of the residue is divided equally between the deceased’s children. If a child of the deceased has died before their parent, leaving children of their own, then those children will inherit the deceased parent’s share equally between them.

Deceased dies leaving no spouse but leaves children and/or grandchildren

  • 100 percent of the residue is split between the children equally;
  • If a child has died leaving children of their own, then those children will take the deceased parent’s share equally between them.

Deceased dies leaving a spouse but no children (or grandchildren)

  • The spouse takes all the personal chattels;
  • The spouse takes 75 percent of the residue;
  • The parents take the remaining 25 percent of the residue; however, if they are not alive, then the surviving spouse takes 100 percent of the residue.

Deceased dies leaving no spouse, no children and/or grandchildren, but leaves a parent or parents

  • 100 percent of the residue is split between the surviving parents;
  • If only one parent is alive, the surviving parent takes 100 percent of the residue.

The law strives to be as fair as possible to those left behind. What the law cannot do, however, is to take into account the personal circumstances of each beneficiary, which is why it is crucially important to make a will during your lifetime to take into account your unique personal circumstances.

One of the other main advantages of creating a Cayman Islands will is that you have complete freedom to benefit any persons or charitable causes you wish. This is even the case where you may have a moral obligation to provide for certain people such as minor children. So long as all of the legal formalities are observed, you have sufficient mental capacity, and you are not acting under duress or the undue influence of somebody, it is very difficult for any person to successfully challenge your will in court.

The other main benefits of having a will is that you can dictate how and when your beneficiaries will receive their entitlements. For example, if you have minors or people who are vulnerable due to physical, mental, or social problems, a trust can be established in your will to stagger the benefits your beneficiaries receive over the course of time, or to impose conditions on them (e.g., completing school, or attaining a certain age), rather than receiving a lump sum shortly after your death which could prove detrimental to their overall welfare.

Lastly, where minor children are involved, a will allows you to nominate a guardian (or guardians) of your choice. Failure to do so could result in unsuitable persons being appointed by the court as guardians of your minor children.

In conclusion, although the law provides a framework in the event you die without a will, or if you die with an invalid will, the only way to ensure your loved ones are cared for as you wish is to “bite the bullet” and get your will done – and done correctly by a suitably qualified attorney. The old expression, “if you fail to prepare, you prepare to fail,” is easily applied here.

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