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25 March 2021
The administration of deceased estates in the Cayman Islands is governed by the Succession Law, 2006 Revision (Succession Law) and its accompanying Probate and Administration Rules, 2008 Revision (Probate and Administration Rules). As required by the Succession Law, when an individual dies owning Cayman assets, some form of grant of representation issued by the Grand Court is usually required before the Cayman assets can be administered. This will be:
It is also possible to reseal a foreign grant before the Grand Court if the foreign grant is of like force and effect to a Cayman grant, as confirmed by foreign law evidence.
The application procedures for probate, letters of administration and resealing are set out in the Probate and Administration Rules and the filing process takes approximately six months to obtain a grant from when the matter commences. The executor or administrator of the estate (the personal representative) has two further filing requirements following the issue of the grant: filing of the inventory and finally the affidavit of general accounting which effectively closes the estate administration proceedings before the Grand Court. The estate administration should be concluded within 12 months of the original filing for the grant, provided that everything runs smoothly.
But what if the estate administration does not go as planned? Complications with the will, disputes between beneficiaries and difficult executors are all common examples of the complexities that often arise within this area of the law. Sometimes it is necessary for the Grand Court to intervene to resolve any difficulties in respect of Cayman estates and in connection with those appointed to administer them. Thankfully, there are a number of options available to executors and beneficiaries in order to resolve difficulties. These include referring questions of construction or seeking the court's direction on any thorny issues pursuant to Section 48 of the Trusts Law (2020 Revision) and even removing a problematic personal representative.
There were two occasions during 2020 in which the Grand Court removed personal representatives following contested hearings. Previously, there were few reported decisions considering such matters. As a consequence of the recent removals, it has been clarified that the Grand Court can do so either:
The latter jurisdiction has been interpreted to be one that should be used in a flexible and practical way without the need for costly and time-consuming factual enquiries. Indeed, it is unnecessary for an applicant to establish wrongdoing or for the court to make adverse factual findings for a personal representative to be removed. The key concern of the court on any removal application reliant on Section 50 is to consider the best interests of the beneficiaries as a whole and thus decide whether such interests require a different personal representative to complete the administration of the estate. The court's emphasis on the availability of swift removal in justified circumstances without the need for lengthy court proceedings makes it plain that it will intervene to ensure the due and efficient administration of Cayman estates.
When appointing a new personal representative, it is important to choose a licensed Cayman service provider who has the necessary expertise and experience in dealing with estates and resolving disputes. The role of the new personal representative includes:
In every case of an individual dying leaving assets in the Cayman Islands, some form of grant must be obtained in order for the Cayman assets to be legally administered. The Cayman Islands as a jurisdiction has a robust framework for resolving estate disputes. The availability of professional trustee service providers to be appointed as personal representatives and who can draw on their substantial executor and trusts experience in complex estates is also a huge advantage.
For further information on this topic please contact Jennifer Fox or Anthony Partridge 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.
This article was co-written with Roger Priaulx and Lee Hart from Genesis. It first appeared in STEP Cayman magazine.
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