It is human nature to put off making a Will, but it is an important step in influencing what happens to your property after your death and determining who benefits from your estate.
Intestacy
What happens if a person dies without a Will?
If you die without a Will, this is known as dying “intestate”. There are certain rules called “intestacy rules” which dictate how your property should be distributed. The intestacy rules for Barbados are set out in the Succession Act, Cap. 249 of the laws of Barbados. Under these intestacy rules, most of your estate will go to your spouse and/or children, and if none, to other next‐of‐kin e.g. parents or siblings. The distribution set out or prescribed by the intestacy rules may, or may not, match your personal wishes.
Verbal statements during your life that you want a particular person to receive a particular asset on your death are not legally binding. Even wishes written in correspondence, e.g. letters to relatives, may not be legally binding unless they comply with the statutory requirements for a valid will. In addition, if you die intestate the Court will appoint an Administrator to manage your estate. The Court will usually appoint your nearest surviving next‐ of‐kin to be the Administrator of your estate e.g. a spouse, adult children, parents or siblings.
Inheritance under the Will
Subject to certain limitations, a person may leave his assets – real estate (such as land or properties), or personal estate (such as shares, savings or proceeds of insurance policies), to any person they direct under the Will, i.e. family, friend, a neighbour, companies, charities, churches or any other beneficiary.
However, in Barbados a Will cannot be used to disinherit a spouse, a minor child or a child who is by reason of some mental or physical disability incapable of maintaining themselves. The rights of these persons to claim a benefit from the estate of their deceased spouse or parent are protected by the Succession Act.
Who can make a will?
Anyone who is 18 years of age or over and of sound mind can make a Will. What is meant by “sound mind”? It means that the person making the Will must have the mental capacity to understand the nature of what they are doing, the effect of the will and its provisions. If the mental capacity of a person is in doubt, an assessment of their mental capacity should be made by a doctor before a Will is made.
Requirements of a valid Will: To be legally valid, a will must be:
- >made voluntarily and without pressure from any person;
- in writing;
- signed by the person making the will in the presence of two (2) witnesses; and
- signed by the two (2) witnesses in the presence of the person making the will after he has signed it.
Who witnesses my Will?
A witness to your Will must not be a beneficiary or the beneficiary’s spouse. If either of those persons do sign as a witness, the will remains valid but the gift to the beneficiary is null and void. Although a will does not have to be prepared by an attorney‐at‐law to be valid, you should have an attorney‐at‐law check a Will you have drawn up yourself. The best course is to have an attorney at law prepare the Will for you to avoid unwanted consequences e.g. the will being invalid, gifts to beneficiaries failing or disputes arising over the correct interpretation of the Will.
Updating/changing your Will
Once you have made your Will, you should review it to keep it up to date.
When should I review my Will?
If circumstances have changed, e.g. you got married or divorced, you have children, you acquire new property, your executors or beneficiaries have died or you have simply changed your mind about certain appointments or gifts (bequests), it may be necessary to either update your will or make a new will. It is not advisable to write amendments on the original will, as later alterations will not be valid or have any effect unless executed in the same manner required for the execution of the will.
The best ways to change your will are either executing a codicil or making a new will. A codicil is a separate document intended to amend a previously executed will. It is supplemental to the original will; it does not replace the original will. A codicil must be executed in the same manner as a will. There is no limit to the number of codicils that can be added to a will. Codicils are suitable to effect simple changes to a will e.g. to change executors or make simple changes to bequests. Where drastic changes are desired it is best to make a new will. The new will should specifically state that it revokes the previous will and any codicils. The old will and any codicils should also be destroyed.
Safeguarding your will
How do I keep my Will safe?
The original Will (and any original codicils) should be kept in a safe and secure place where your Executor can easily find it after your death. You can lodge your Will at the Depository of Wills of Living Persons at the Supreme Court Registry in Barbados. Lodging the Will with the Court will minimise the risk of it being lost, stolen or damaged and ensure that the will can be easily located by your Executor in due course.