May 2013

28 May 2013

Jane Collis
The internet should give us all pause for thought, particularly in the context of estate planning. In preparing a will, we focus on home, bank accounts and a lifetime of accumulated tangible treasures that we wish to pass on to loved ones. And we select trusted friends or family members to take responsibility for the task of seeing these things make it into the right hands. Social networking accounts, and the data they store, are rarely contemplated in this context. For those of us less tech-savvy than the rest, the question may well be, does it matter? The answer must be a resounding YES, as the information that has the potential to be lost can be irreplaceable. Many people use their Facebook or Google account as a personal databank, or store all of their pictures, music, videos and other digital content in “the cloud”. While there is some variation amongst social networking providers as to what happens to the account on the death of the account holder, one thing seems to be certain: access by next of kin to information stored in the account will be limited at best. Some sites will delete data stored in an account after a period of inactivity, while others allow an account holder to nominate a person to “inherit” the content in certain proscribed circumstances. Others, still, like Facebook, “memorialize” an account, which means the profile remains in existence forever, access being restricted to friends only. In part, the lack of consistency in approach with regards to the death of account holders is the result of privacy and probate laws not keeping pace with the reality of the internet, as well as a failure to properly define “digital assets”. As well, establishing policies to deal with the death of account holders is neither sexy nor fun.
20:44 / Wills, Trusts & Estates
22 May 2013

Jane Collis
In an effort to achieve a fair division of matrimonial assets, the Court is increasingly demonstrating its willingness to scrutinise the beneficial interests of divorcing spouses under family trusts. A high divorce rate seems to have become the norm rather than the exception in the western world. This reality, and the Court’s determination to achieve fairness on the dissolution of marriage, has generated a measure of uncertainty with respect to the treatment of trusts. In a discretionary trust context, a beneficiary has only a right to be considered in the exercise of the trustees’ discretion and this has shielded beneficiaries on divorce, who had no fixed entitlement to any portion of the trust fund. However, the Court, in divorce matters, is concerned about achieving a fair division of marital assets and increasingly has taken the view that a divorcing spouse’s interests under a trust should be subjected to closer scrutiny.
13:30 / Family Law / Wills, Trusts & Estates
21 May 2013

Litigation surrounding Wills is steadily on the increase. In particular, issues of disputed testamentary capacity are becoming more frequent and as such, attorneys must be extremely cautious when taking Will instructions from individuals. What does this mean? Disputes involving lack of testamentary capacity refer to those that have to do with the determination of the mental state of the testator. When an attorney drafts a Will, he or she has the duty to be aware of the client’s competency, to ascertain whether the client is being subjected to undue influence and to make a reasonable assessment of the mental capacity of the client. An attorney should not draft a Will for a client unless the attorney believes that the client has testamentary capacity and a full comprehension of the nature and extent of the estate that he or she is distributing.
16:27 / Litigation & Dispute Resolution / Wills, Trusts & Estates
14 May 2013

In my earlier post Bermuda Calling: Telecommunications Reform & Investment Opportunity, I described how telecommunications in Bermuda is undergoing root and branch reform with a view to not only making the industry more competitive but more attractive to investors. The overhaul in telecommunications, following extensive consultation with stakeholders, is embodied in two key pieces of legislation, the Regulatory Authority Act 2011 and the Electronic Communications Act 2011, both of which have become the twin foundation of Bermudian Regulatory Reform in the Telecommunications sector. Now, an update: On the 18th March 2013, Digicel issued an initial complaint to the Regulatory Authority stating that North Rock is providing bundling services and should not be doing so until Integrated Communication Operating Licenses (ICOLs) are issued. The complaint was a result of the examination of North Rock’s advertising material and flyers and their marketing campaign entitled “Blazing Bundles”.
20:28 / Bermuda Case Law & Legislation / Bermuda Government / Company & Commercial Law
13 May 2013

This year’s event marked the seventh legal clinic that MJM Limited has hosted with Age Concern, a registered charity (#561) dedicated to meeting the needs of seniors in the local Bermuda community. Attendees were able to participate in a seminar on essential estate planning tools, which was led by MJM Director Hil de Frias, as well as attend interview sessions with individual attorneys from the firm. Here’s a short 6 minute video about the event: Age Concern Bermuda and MJM present the 2013 Annual Free Legal Clinic (video). Two of the more pressing items that were identified during this year’s legal advice sessions were Powers of Attorney and Wills. My colleague Emily Deane and I have written on Wills in recent posts Advantages of using an Attorney to prepare your Will and With a Will There is a Way so this article will focus on the value of Powers of Attorney.
03:28 / Family Law / MJM Barristers & Attorneys / Wills, Trusts & Estates
13 May 2013

Honor Desmond-Tetlow
In this article I will address some of the general principles of Bermuda divorce law and also take a look at some misconceptions which are fairly widely held. At the outset, however, I must stress that time and space will not permit a very detailed analysis and I would counsel anyone engaged in, or considering, a divorce to seek the advices of an experienced matrimonial lawyer. Firstly, let’s look at jurisdiction. Sometimes clients are confused about their right to initiate a divorce in Bermuda. Ours is a cosmopolitan population and many clients will have been married overseas, leading some of them to believe that any divorce must take place in their “home” jurisdiction. Not so. If either party to the marriage is “domiciled’ in Bermuda (in effect, Bermuda is home) or has been resident continuously in Bermuda for one year or more, our courts can entertain a divorce petition.
03:18 / Family Law / Litigation & Dispute Resolution
03 May 2013

It is essential that every individual, regardless of age, makes their own Will. If you die without making a Will then you die intestate which means that a court can distribute your assets in accordance with the law at that time. This may result in your home and hard earned investments being distributed to siblings, cousins, even further removed relatives or the Bermuda Government! It is fundamental that you make a Will in order to maintain control over your assets even when you have passed. There are a few options when contemplating making your Will.
13:10 / Wills, Trusts & Estates