Speaking Notes Prime Minister the Rt. Hon. Hubert Ingraham on PROBATE AND ADMINISTRATION OF ESTATES BILL, 2010

This Bill is presented as a part of an ongoing effort to modernize and bring up to date, outdated laws and procedures which contribute to inefficiencies and costliness and time-consuming nuisance processes to the annoyance and disadvantage of people. These processes and procedures though still supported by some, have no place in a modern Bahamas.

We in the Government to doing away with as many of them as we can. Change always face some challenge, some opposition, some excuse why something should be done differently.

Change agents ought not be deterred however.

This Bill follows in the footsteps of many others we have been a Party to – from workers rights, to children’s’ rights, to the end of primogeniture, to the end of dowry, to end of the monopoly of the airwaves, to removal of red tape in the issuance of drivers licenses and the license of motor vehicles …the list is long.

It is nearly a nightmare to administer the estate of a deceased person in The Bahamas. Administration of an estate ought to be a simple, straightforward undertaking. Regrettably it ain’t so! Hopefully it will become so upon the coming into force of this Bill and the promulgation of Rules by the Rules Committee of the Supreme Court.

The preference would have been to make the regulations by which the Court would have been bound but I’m persuaded that the same ought to be left up to the Rules Committee of the Supreme Court.

I pray and I pray earnestly that that Committee, Chaired by the Chief Justice will see its way clear to make clear, simple and transparent rules so that an estate in respect of which there is no legal challenge may be administered speedily.

This Bill seeks to consolidate into one statute all the laws relating to the administration of an estate.

EXISTING LAW

Separate and apart from the Inheritance Act, Ch. 116 the Wills Act, Ch. 115 and the Administration of Estates Act, Ch. 108, the law with respect to obtaining a grant of probate and letters of administration is scattered and contained in the following pieces of legislation –

1. for the substantive provisions on probate causes and matters - Part V of the Supreme Court Act, Chapter 53 of the Statute Law of The Bahamas which became law on 1st January, 1997 saving the English probate practice and procedure; 2. for the Probate Rules governing non-contentious probate business - Part II of the Supreme Court Act, Chapter 53 which is included in the Subsidiary Legislation Omitted from the 2000 Edition in the Supplementary Volume of the Statute Law of The Bahamas which have been in existence since 1917; 3. for the provisions governing contentious probate proceedings - Order 68 of the Supreme Court Rules, Chapter 53 of the Subsidiary Legislation of The Bahamas which have been in existence since 1978; and 4. where the laws of The Bahamas are silent - the English probate law practice and procedure which was extended to The Bahamas prior to the passage of the Supreme Court Act, 1996, now Chapter 53 (UK Non Contentious Probate Rules, 1987).

CONSIDERATIONS DURING THE DRAFTING PROCESS

This Bill was drafted by the Law Reform and Revision Commission, in consultation with the Deputy Registrar of the Supreme Court responsible for the Probate Division (Mrs. Tabitha Cumberbatch).

THE PROBATE AND ADMINISTRATION OF ESTATES BILL, 2010

The Bill will repeal Part V of the Supreme Court Act and consolidate and modernize the law regarding a grant of probate or letters of administration and resealing a foreign grant.

The existing provisions of the Supreme Court Act are all contained in the draft Bill, but have to a large extent been re-arranged and in some instances reworded for easier reading. The Bill also seeks to include those provisions that are not presently provided for in our written law, but which have always been a part of probate practice in The Bahamas (clauses 7, 8, 11, 13, 14, 15, 17, 18 and 19).

PART I

PRELIMINARY

Part I of the Bill provides for the title of the Bill and the terms which will be used in the Bill.

PART II

ESTABLISHMENT OF A DEPOSITORY FOR WILLS

Part II of the Bill introduces the concept of a depository for wills. While not a totally new concept, provision is made for a depository in the UK (Supreme Court Act, 1981).

Clause 3 of the Bill seeks therefore to introduce the establishment of a depository for original wills and other testamentary documents for living persons in The Bahamas thus enabling persons, upon the payment of a prescribed fee, to deposit their Last Will and Testament or other testamentary instrument in the depository for the safe custody and preservation of such documents under the control and direction of the Chief Justice. The provision provides for the Registrar to cause every will deposited to be recorded.

A will deposited under the Bill shall only be open to inspection by the testator during his lifetime, or, upon proof of the death of the testator, by the personal representative named in the will or his attorney, or by any beneficiary named in the will or his attorney. The new provision also seeks to provide for the withdrawal or substitution of a will originally deposited upon the payment of the prescribed fee. Every will deposited must be contained in a sealed envelope and provide for the date, name and address, etc. of the Testator and Executor and name of depositor.

PART III

JURISDICTION AND PROCEDURE FOR OBTAINING A GRANT OF REPRESENTATION

Part III of the draft Bill seeks to clearly express the procedure for making application for a grant of representation.

Clause 4 of the Bill makes provision for the jurisdiction of the court with respect to eligibility of persons who would be entitled to obtain a grant of representation in respect of the estate of a deceased person. Currently, as expressed in section 31 of the Supreme Court Act the criteria for eligibility is silent.

Clause 5 of the Bill seeks to clarify the procedure for making an application to obtain a grant of representation in respect of the estate of a deceased person notwithstanding that the deceased person left no estate. The clause specifically provides for such applications to be made to the Probate Division of the Registry of the Supreme Court, which includes any sub-registry of the Probate Division. This new concept providing for applications to be made to a sub-registry will assist in reducing the present burdensome number of applications made to the main Registry in New Providence. At present however, this feature can only be facilitated in Grand Bahama but the intention is to provide for self-sufficient sub-registries in other Islands.

Clause 6 of the Bill makes provision for the procedure for obtaining a limited grant, because there was no provision in the existing Bahamian law for obtaining these types of grants. A limited grant shall cease when the purpose for which the grant is made has been determined.

PART IV

GRANTS OF REPRESENTATION

Part IV of the Bill lists all of the various grants of representation which may now be applied for, namely, a grant of probate, grant of administration, grant of administration pendente lite, grant de bonis non, grant ad litem, grant of special administration where personal representative is abroad, grant during minority of executor, grant where a minor is a co-executor, grant in case of mental incapacity, administration with will annexed, grant to attorneys, grant where deceased person died outside The Bahamas, grant in additional name and grant to consular officers.

While not all of these grants are presently provided for in the Supreme Court Act or the existing Probate Rules, the courts have issued limited grants by virtue of the English Law which was extended to The Bahamas. Hence, the provision of the new clauses 10, 11, 14, 15, 17 & 19.

PART V

POWERS OF COURT IN GRANTING REPRESENTATION

Part V of the Bill seeks to provide for the powers of the court in relation to the issue of grants of representation.

Clause 21 of the Bill retains the existing requirements of section 39 of the Supreme Court Act where applicants file an administration bond. The clause now seeks to remove the requirement for a bond with two or more sureties in the sum of four hundred dollars for making a return into the Registry. The clause retains the provision for an administration bond with respect to an application for a grant of administration. The Bond for making Return is no longer necessary since section 22(2) imposes a penalty for failure to file a Return within a specified time.

Clause 22 of the Bill seeks to now impose an obligation on the personal representative once the grant has been issued, to file a return of the value of the personal estate and effects of the deceased in the form prescribed within –

1. six months after the date of the grant of representation, where the estate of the deceased is situate on New Providence; or 2. nine months after the date of the grant of representation, where the estate of the deceased is situate on any of the Family Islands.

This is in contrast to the current provision of section 39 of the Supreme Court Act which provides for “the returning within six months after the date of such bond”.

The clause further provides for the creation of a summary offence for failure to comply with the provision and a penalty not exceeding three thousand dollars.

Clauses 20 and 23 – 25 of the Bill retain the existing provisions in the law. The equivalent provisions of clauses 20 and 23 - 25 of the Bill are section 51 of the Supreme Court Act, rule 23 of the Probate Rules and sections 44 and 34 of the Supreme Court Act, respectively.

PART VI

RESEALING AND REVOCATION OF A GRANT OF REPRESENTATION

Part VI of the draft Bill provides for resealing and revocation of a grant of representation.

Clause 26 of the Bill retains the law with respect to the resealing of foreign grants as currently contained in section 49 of the Supreme Court Act, Ch. 53.

A new paragraph (c) is inserted in clause 26 (1) of the Bill to provide for the specification of a country by the Attorney-General by Order for which grants may be resealed. Such a provision will allow for reciprocity with other countries.

A new provision is contained in clause 27 of the Bill to address the issue of grants of representation issued in civil law jurisdictions. There is the assumption that such grants will be resealed by virtue of the grant being issued outside The Bahamas. In practice however, these grants are not resealed, but rather the relevant grant is issued as if it were an initial application for a grant of representation.

The clause therefore provides for a paper (defined in the Act as a document issued in respect of a testamentary or non-testamentary application) issued in a foreign jurisdiction to be exhibited as evidence of any fact contained therein for the purposes of making application.

Clauses 28 and 29 of the Bill seek to retain the provision with respect to the application for and revocation of a grant of representation currently contained in section 32 and 38 of the Supreme Court Act respectively.

PART VII

MISCELLANEOUS PROVISIONS

Clauses 30 – 37 of the draft Bill mirror sections 33 – 43 of the Supreme Court Act, Ch. 53 while clauses 38 and 40 - 43 are new provisions. Clause 39 of the Bill mirrors section 50 of the Supreme Court Act, Ch. 53. Clause 37 of the Bill, now mirroring section 42, has been given a new marginal note (Minor as a beneficiary).

Clause 40 of the Bill revises section 50 of the Supreme Court Act, Ch. 53. Under the present law, a bank manager or assistant bank manager is permitted without the production of probate or letters of administration to pay to any person who provides satisfactory evidence of proof of death and any other information which the bank may require, any sum standing to the credit of a deceased, provided that any person seeking to access a deceased’s person’s funds makes and delivers a statutory declaration to the effect that a deceased person had no real estate in The Bahamas; and that his personal estate did not exceed the amount standing to his credit at the bank.

In addition, a person seeking to access any funds standing to the credit of the deceased had to provide evidence to the bank that at least three months’ notice had been given in three issues of the Gazette and in three issues of a daily newspaper calling on persons having any claims to the estate of the deceased to notify the bank.

These provisions were impractical and difficult to satisfy. To this end, clause 40 of the Bill seeks to provide for payment of such sums as may be prescribed by rules standing to the credit of the deceased person to any person (being the claimant) who upon producing –

1. satisfactory proof of death of the deceased; and 2. such evidence as may be required by the manager or other authorized officer of the bank,

appears to such manager to be entitled by law to the said sum standing to the credit of such deceased person.

This clause also amends the statutory declaration so that what will now be required is a statement to the effect that the monies applied for are to be used for funeral expenses. Finally, this clause removes the requirement of three months’ notice to be given to any creditors of the deceased.

Clause 41 of the Bill provides for the payment by an employer of monies held to the credit of a deceased employee. Where –

1. an employee (other than a public officer) has died (whether before or after the commencement of this Act) and is entitled to sums from his employer (whether before or at the time of his death); and 2. the employer has in his possession a document under oath identifying payment to a specified person,

the employer may without requiring the production of probate or letters of administration pay to the person so identified such sums.

The clause further provides that such sums as previously stated shall not form part of the estate of the deceased employee or be subject to his debts.

The clause defines “public officer” to include “contract officers”. The clause also excludes the employer from liability in respect of any payment made in accordance with this section.

Clause 42 of the Bill seeks to make a new provision for applications in small estates where the whole of the real and personal property of a deceased person does not exceed ten thousand dollars ($10,000.00).

Am amendment will be offered to delete 42 (1) and (2) as the same was previously dealt with by amendment to the Supreme Court Rules. The Stamp (Amendment) Act, 2010 also removes the payment of stamp duty, hence clause 42(3) should be deleted.

Clause 43 of the Bill which is also a new provision seeks to provide for a penalty in the form of a fine not exceeding five thousand dollars ($5,000.00) where any person makes a false declaration in respect of any application under the Act.

Clauses 44 - 74 of the Bill merely seeks to consolidate the Administration of Estates Act, Ch. 108 with the law on probate, the provisions of which remain virtually unchanged. However, some of the provisions have been re-arranged for easier reading.

Clause 75 of the Bill mirrors section 51 of the Supreme Court Act (Grants to Consular Officers).

Clause 76 of the Bill provides for the Rules Committee to make rules for, inter alia, in relation to any matter or thing required or permitted to be prescribed under the Act.

Clause 77 of the Bill provides for the repeal of Part V of the Supreme Court Act, Ch. 53, section 341 of the Penal Code Act, Ch. 84 and the whole of the Administration of Estates Act, as the Bill now provides for these provisions.

Clause 78 of the Bill makes provision for a savings clause in respect of applications filed prior to the coming into force of the Act.

I commend the Bill to the House.