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07 May 2020
COVID-19 has shown that life can be unpredictable. It is impossible to know what is around the corner and everyone is having to adapt to living in a time of uncertainty and change.
Among myriad other things, the situation demonstrates the importance of having an up-to-date, valid will. Luckily, those who are not frontline or essential workers but are spending their time in lockdown or self-isolation may now have time to catch up on this life admin task.
However, due to the current restrictions, making a will is likely to take a different format than normal.
Many people are spending more time with those with whom they live and communicating more regularly with those with whom they do not. This presents an opportunity to have conversations that would usually be considered difficult, including topics relating to estate planning, such as:
Having these kinds of conversation now can alleviate uncertainty and family disparities in the future. If a family is aware of a person's wishes and the reasons behind them, there will be no surprises down the line.
Due to the COVID-19 restrictions, the usual methods of implementing wills and advance healthcare directives are having to be adapted. However, individuals can instruct their attorney on such matters by video call, phone or email. Despite much of the workforce working remotely, the relevant documents can still be properly prepared and discussed with clients.
In the Cayman Islands, a will must be executed according to the formalities set out in Section 6 of the Wills Law (2020 Revision) in order for it be valid. This section is very prescriptive. Accordingly, a will is void unless:
During a time like this, the signing and witnessing of wills does prove challenging. However, while the requirements may seem strict, the witnesses can, for example, arrange to do all of this through a window to maintain the social distancing requirements and take all relevant hygiene precautions. If clients have any questions regarding the signing and witnessing of wills, they should seek legal advice from an attorney.
Although electronic wills are widely used in other parts of the world, the Cayman Islands does not yet recognise the validity of electronic wills or wills executed by any form of electronic means. While this would be a significant milestone for the Cayman Islands and the international private client world generally, especially at this time of global crisis, it appears to remain some way in the future.
Section 3(1) of the Electronic Transactions Law (2003 Revision) precludes the use of electronic signatures in testamentary instruments and therefore stands as a significant obstacle to the development and recognition of electronic wills in the Cayman Islands. Section 3(1) provides that the 2003 law "shall not apply to any rule of law requiring writing or signatures for the creation, execution, variation or revocation of a will or other testamentary instrument".
COVID-19 has changed the way in which ordinary tasks are performed. However, keeping up to date with changes and government guidelines, and adapting accordingly, is something at which humans are surprisingly adept.
During this global pandemic, having a will can provide peace of mind that loved ones will be provided for in the event of death.
For further information on this topic please contact Anthony Partridge or Fraser Allister at Ogier by telephone (+1 345 949 9876) or email (firstname.lastname@example.org or email@example.com). The Ogier website can be accessed at www.ogier.com.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
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