A false economy

A will is, of course, one of the most important documents that a person creates in their life. It is the document that disposes of all of a person’s property on death and may deal with issues such as guardianship of children. In other words, it is a document that can provide for the people that a testator cares most for in the world by transferring the property they have acquired during their lifetime.

Among other things, and subject to applicable forced-heirship rules, a will allows a person to choose the beneficiaries of their estate, to select executors to administer the estate and to appoint guardians for minor children.

Making a will does not always need to be complicated. However, many countries throughout the world impose strict formal requirements in respect of the signing and witnessing of testamentary documents, such as wills and codicils. Care must be taken by the drafter to accurately reflect the testator’s wishes and to ensure that such wishes are expressed coherently and in a manner that may actually be effected in practice.

A quick Google search will show that there are many resources available online to allow individuals to make their own wills and, as has been highlighted in recent issues of the STEP Journal, there are a growing number of unregulated will writers. It is arguable that such practices will increase as we continue to adopt artificial intelligence; yet balanced against the development of technologies seeking to enhance the simplicity of certain tasks is the growing complexity and global nature of testators’ assets, families and wishes.

The law

Under Cayman Islands law, the formal requirements to make a valid will are relatively simple. Pursuant to s.6 of the Wills Act (2021 Revision) (the Act), a will is formally valid if it is:

• made in writing;
• signed at the foot or end of it by the testator (or by some other person in the testator’s presence and by the testator’s direction); and
• such signature is made or acknowledged by two or more witnesses present at the same time (which witnesses must attest and subscribe the will).

The position may be complicated by conflict-of-law rules. For example, where a will disposes of real estate, it is treated as properly executed if its execution conforms to the internal law of the country where such property is situated. Similarly, a will that disposes of movable property, including monies held in a bank account or shares in a company, is treated as properly executed if its execution conforms to the internal law of the country where either it was executed, the testator was domiciled or habitually resident, or the testator was a national.[1]

Unlike many other jurisdictions, the Cayman Islands neither has forced-heirship rules at common law (or under statute) nor may any person make a claim against an estate for financial provision. In other words, Cayman Islands law allows complete freedom of testation. However, again, conflict-of-law rules may complicate this very simple position. The material or essential validity of a will of movables or of any particular gift of movables contained in such a will is governed by the law of the testator’s domicile at the time of their death.[2] In other words, the validity of gifts contained in a will disposing of shares in a company incorporated in the Cayman Islands may be determined by the law of a place other than the Cayman Islands.

The case of Hamaty

The decision of the Grand Court of the Cayman Islands (the Court) in the case of Monique Hamaty-Simmonds et al. v Sylvia Hamaty et al.[3] demonstrates the potential consequences of a poorly drafted and executed will and estate plan.

The facts of the case are that the late Mr Hamaty made a will in 2009 (the 2009 Will), which, on the face of it, appeared validly executed. His personal circumstances changed over the years and he purported to make a series of further testamentary instruments: a will made in March 2019 (the First 2019 Will), a will made in December 2019 (the Second 2019 Will)[4] and a codicil made in April 2020 (the Codicil).

A number of issues fell to be determined by the Court, including whether:

• the Codicil was formally valid;
• even if formally valid, the Codicil failed for ambiguity; and, if not, whether the Codicil:
  • should be admitted to probate omitting words (or, in the alternative, whether the Court should rectify the Codicil); and
  • effectively confirmed and republished the Second 2019 Will such as to cure any defects in the execution of the Second 2019 Will.

The Codicil had, on its face, a proper attestation clause and therefore appeared to have been duly executed and attested. Nevertheless, the Court was presented with conflicting evidence from the witnesses to the Codicil as to whether or not they were both actually present at the same time as the testator’s signature.

Williams on Wills (11th edition) states that, where a will, on the face of it, appears to be duly executed, the presumption is in favour of due execution (i.e., that the document was duly executed in accordance with the formal requirements of s.6 of the Act). The Court held that, consistent with authorities from England and Wales, this presumption is rebuttable only where there is, at the very least, ‘positive and reliable’ evidence to the contrary and that there must be the ‘strongest evidence’ that the document was not duly executed.[5] The Court found that the evidence based on the witnesses’ recollection of events was insufficient to rebut the presumption of due execution and so the Codicil was found to be valid.

The Codicil referred to the date of the 2009 Will as being the date of the testator’s last will, whereas it was proved that the testator had made two later wills: the First 2019 Will and the Second 2019 Will (albeit each with defects of its own). The questions therefore arose as to whether the Codicil failed for ambiguity and, if not, whether the Codicil should be admitted to probate omitting the erroneous words (or alternatively whether the Codicil should be rectified).

The Court heard that the testator was reluctant to incur legal fees and had asked a family member who was legally qualified in another jurisdiction to prepare the Codicil. The family member, however, was unaware of the existence of the later wills and specifically drew that fact to the testator’s attention. The testator had amended a draft of the Codicil to correct one erroneous reference to the 2009 Will, but he appeared to have missed and therefore failed to correct a later such reference.

The Court considered the authorities, all from the courts of England and Wales, on the Court’s power to omit from probate words introduced through lack of care and that the stray reference to the date of the 2009 Will may be omitted. Having made this decision, the Court found that it did not need to make a decision on whether it has power to rectify a will. However, in an apparent obiter comment, Judge Doyle stated that Lord Neuberger’s considered comments in Marley v Rawlings provide strong support for such a power.[6]

Although there was no evidence that the Second 2019 Will had been executed in accordance with the formal requirements of s.6 of the Act, the Codicil contained a statement saying: ‘I hereby confirm and republish my will … in all respects other than those herein mentioned’. Significantly, the Court found that if a will was invalidly executed or attested, the republication by a subsequent codicil is effective to render the will valid as at the date of the codicil and that, therefore, the defects in the formal validity of the Second 2019 Will had been cured by the Codicil.

Lessons learned

This case highlights unfortunate examples of insufficient care being taken in the preparation and execution of testamentary documents. It brings out issues of due execution and material validity and, moreover, it is an example of the effect that a badly drafted will can have on a testator’s family, with expressions of sadness made by family members in evidence.

To quote Doyle J in conclusion:[7]

‘If there is a lesson to be learnt from this case, apart from the importance and desirability of family unity, it is that it is well worthwhile spending money on practicing lawyers qualified in the relevant jurisdiction to get things right and to ensure that testamentary documents are duly prepared, signed and attested. It is often a false economy to try and undertake important legal matters without the benefit of assistance from duly qualified independent lawyers.’