Not many people want to think about death – or more particularly, their own death. In a way this reluctance is understandable. Unfortunately, it often leads to people failing to make a will to provide for their loved ones after they have gone. Contrary to popular belief, at Broadhurst we consider a will to be for a living person and we encourage our clients to take the same view. Failure to make a will can leave your loved ones at risk, cause unnecessary stress and strife, and may lead to your wishes not being considered after your death.
The advantages of making a will are:
- Ensuring that your wishes are followed;
- Providing for loved ones;
- Reducing the chance of a challenge to your estate;
- Protecting your minor children.
What is a Will?
A will is a document in writing that sets out your instructions as to how your estate (property, money, assets) are to be divided. In the Cayman Islands wills are governed by the Wills Law (2004 Revision). The person who makes a will is called a testator.
Formalities for a valid Will
Section 6 of the Wills Law sets out the manner in which a will must be executed. For a will to be valid:
- It must be signed at the foot or end thereof by the testator of some other person on his behalf by another person in his presence, and by his direction;
- There must be two or more witnesses present at the same time;
- Those witnesses must attest and subscribe the will in the presence of the testator;
- The testator's signature is valid if it is placed at, after, following, under, beside or opposite the end of the will.
Wills generally contain an attestation clause, which confirms that the document has been executed in the presence of at least 2 witnesses, and that all relevant requirements have been met.
Other requirements for a valid will include:
- The maker must be 18; and
- Be of sound mind.
What should I be aware of when making a will?
It goes without saying that every individual has his or her own needs when it comes to estate planning. However, a few general comments and observations include:
- Name more than one executor;
- Consider any wills that you have abroad – a revocation clause revokes all wills, even in another jurisdiction, and this may not be what you want.
- Be aware that marriage revokes a will, so you may need to remake your will if you have married;
- Divorce doesn't revoke a will! If you get divorced and your beneficiaries change make a new will;
- It is essential that your will is stored in a safe place. If it is lost or destroyed this can cause problems.
- Using an attorney to draft your will adds certainty that it will be enforceable after your death.
If you need to provide for minor children:
- You should appoint trustees or guardians over your children.
- You may consider establishing a trust out of your estate.
At Broadhurst LLC we have 25 years experience of dealing with wills and probate in a confidential and sensitive manner. We would be pleased to assist in drafting your will, or otherwise help with estate planning.
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.