Wills, Trusts & Estates

Stoneham v Fraser [2020] SC (Bda) 92 Civ. (29 November 2023) In November 2023 the Supreme Court of Bermuda (Mussenden J) delivered judgment in a case involving testamentary capacity and undue influence in the context of an estates dispute - an area in which we anticipate...

In the recent decision In the Matter of the X Trusts [2021] SC (Bda) 72 Civ (7 September 2021)Assistant Justice Kawaley provided guidance regarding the role of the protector in offshore trusts. The judgment arose against the backdrop of a previous Public Trustee v Cooper blessing...

By Nathan Samuels & Stephanie Matthews Effective estate planning will ensure, primarily, that (i) your affairs will continue to be managed during your lifetime in the event that you become incapacitated and (ii) that your assets are distributed according to your wishes after your death. Your primary...

I am sometimes instructed by a married couple that they want to create “mutual wills”. Generally I shudder at the thought and suggest that really what they might be after are “mirror-image” or reciprocal wills and then I proceed to explain the difference. I have only had one set of clients execute mutual wills after the proffered explanation, so I am led to the conclusion that there is widespread misunderstanding of the term. While there may be occasions for using a mutual will, in my professional opinion, they will be few and far between.

With a surprising degree of frequency I meet with clients to initiate the probate process many years after the death of a loved one. Often the catalyst is an attempt to sell a piece of real estate, at which time they learn that they have no authority to sell because dad’s estate or grandma’s estate was never probated. As many Bermudian families try hard to keep properties within the family, and as many families have a number of pieces of real estate, it can be years before this discovery is made. Then, the whole sale process comes to a grinding halt.

“There is only one kind of shock worse than the totally unexpected: the unexpected for which one has refused to prepare.” Mary, Renault, The Charioteer In May 2013, I wrote about the importance of addressing digital assets in the context of estate planning. With the passage of almost five years, I thought it would be interesting to revisit this subject. What, if any, progress has been made in identifying the nature and scope of digital assets and the rights arising in respect of those assets on the death of the “user”? To make this review a bit easier, I will adopt the definition of a “custodian” used in the Revised Uniform Fiduciary Access to Digital Assets Act (2015) (“DAA”) of the United States, who is defined as “a person that carries, maintains, processes, receives, or stores a digital asset of a user”. This definition is intended to cover all online accounts, services and social networking providers.