The composition of the modern Bahamian family is a stark contrast to the Bahamian family of yesteryear. Traditionally, this family was described as "nuclear" and consisted of a mother, father and their children. Today, the average Bahamian household would include at least one of the following: a divorced spouse and/or stepchildren, a common law relationship or a single parent/child relationship.
For reasons appearing below, it is important to examine, even if briefly, the importance of preparing a will for the new model of Bahamian families.
Importance and formalities of a Bahamian will
A will is the document that sets out in writing a person's intention as to the distribution of assets on his/her death. A will "speaks" beyond the grave.
In order for a Bahamian will to be probated in The Bahamas, the will must: (i) be in writing; (ii) be signed by the deceased person; (iii) be signed by and in the presence of two independent witnesses (who are also in each other's presence at the time of signing); (iv) appoint an executor who is of sound mind and is at least 18 years old.
A new will should be executed after any significant life event, such as a death of a spouse, separation, divorce or remarriage.
Inheritance laws of The Bahamas
The Inheritance Act of The Bahamas 2002 ("the act"), section 4, sets out what happens when a person dies without a will, or with a will that does not comply with the formalities set out above.
If a person dies without a valid will and leaves:
o A spouse only - the spouse takes the entire estate;
o A spouse and child(ren) - the spouse gets one half and the children share the remaining half;
o Child(ren) only - the child(ren) take(s) everything;
o No spouse, no child(ren) - the grandchild(ren) of the deceased person take the entire estate;
o No spouse, no child(ren), no grandchild(ren) - the parents of the deceased person take the entire estate.
Please note that while this article examines a few of the survivor case scenarios, section 4 of the act should be referred to for more family scenarios.
Modern families and the Inheritance Act
Again, it should be clearly stated and understood that the terms of a valid will shall take precedence over the provisions of the Inheritance Act. This is why a deceased person's wishes should be clearly and properly laid out in a will.
As it relates to the importance of executing a will, below, I briefly highlight the five most common inheritance case scenarios encountered in practice, which clearly demonstrate the importance of making a proper will:
o I am currently a single mother, with minor children. What will happen to my home (purchased in my name only) if I get married and then die without a will, leaving my husband and my children?
If you die without a will, your husband will get 50 percent of the home (less any unsatisfied mortgages thereon) and your children will get 50 percent. If the children are minors, their legal guardian(s) - in most cases the surviving parent - will be responsible for managing their interest in the house until they have attained the age of majority.
o I am a divorced father of two who recently remarried. My new wife also has a child from a previous relationship. What will happen to the property currently owned by me if I die without a will?
If you die without a will, your current wife will take 50 percent of your estate and 50 percent will belong to your children. A stepchild is not considered your child for the purposes of the Inheritance Act unless the child is legally adopted by you.
o I am a middle-aged man with adult children from my first marriage. My first wife died and I have now married a middle-aged woman who also has adult children. Our matrimonial home is owned by me. Will her children have any right to my house? Will my adult children be able to evict my wife from my home on my death, if I die without a will?
If the property is held in your name only, your wife, under the provisions of the Inheritance Act, will acquire a 50 percent interest and your children will be entitled to the remaining 50 percent. Your new wife's children would not normally have an interest in your home. However, please note that once your estate has been properly administered, your wife will be able to distribute her interest in your home to her beneficiaries, who in all likelihood will include her adult children.
Section 24 of the act provides your widow protection from eviction. Under this section, your widow would have a right to occupy the residence enjoyed as the matrimonial home at the time of your death until she dies, remarries or otherwise makes any agreement with your children to surrender her interest. However, also note that this section allows for any person or entity with an interest in the matrimonial home, which is adversely affected by your widow's occupation, to make application to the court for the relief or buyout of her interest.
o I have been in a common law relationship with a man for 20 years. He is still legally married as he never obtained a divorce from his wife. We have acquired substantial assets together. Some are in his name only. What will happen if he dies without a will?
Simply put, the Inheritance Act does not recognize common law relationships. Therefore, any property owned by him solely would belong to his estate, which will not include you. If he is married and never formally divorced, his wife would take 50 percent and his surviving children (including his children with you or any other woman) would share the other 50 percent equally. Any children claiming to have been fathered by him, would need to provide proof of paternity such as a birth certificate, affidavit of birth or any other evidence of paternity as accepted by the court. You would acquire 100 percent of any assets you both owned as joint tenants. But, you would probably have to seek court assistance for any asset contributed to by you, but where your name does not appear on the title deed(s) to the asset.
o I believe that my husband may have children outside of our marriage, what will happen to the assets owned in his name solely?
If he dies without a will, you would take 50 percent and his surviving children would take 50 percent of his estate. This would also include children fathered outside your marriage. The child claiming to be your husband's would need to provide evidence that your husband was his/her father. In most instances, this would mean by presenting a birth certificate or affidavit of birth which confirms your husband as the father. There are certain limited cases where other forms of evidence may be allowed by the court in trying to prove paternity of the child, but you should consult an attorney to discuss your options.
These are only a few examples of inheritance issues that face the modern Bahamian family, but they do demonstrate the importance of executing a will. If you have any questions concerning the scenarios outlined above, or obtaining a will or amending a current will, please consult a qualified Bahamian attorney to obtain advice specific to your family's needs and circumstances.
o This article does not constitute legal advice. If you need advice on the issues raised in this article or otherwise, you should consult a qualified attorney. Carlene Farquharson has been with the law firm of Alexiou, Knowles & Co. since October 2006. She is currently the resident attorney in the firm's office in Marsh Harbour, Abaco. Her areas of practice are conveyancing, estates/probate, company and compliance/regulatory procedures. She holds a bachelor's degree in business administration from Acadia University, Canada; a master's degree in legal studies from the University of Bristol, England; a certificate in bar vocational studies from the University of the West of England and an international diploma in money laundering and compliance procedures from the University of Manchester, England (in conjunction with the Bahamas institute of Financial Services).
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