It is prudent for clients to make a Will governing who will inherit their estates when they die.
Without a Will you will die ‘intestate’. This means your estate will pass under the statutory rules of intestacy to your nearest living relative/s on your death – regardless of whether you would have chosen them as your beneficiaries had you made a Will.
Your Will is a legal instrument directing how you, the ‘testator’, wish to dispose of your personal belongings, your money, land and property and any other assets you own on your death. By making a Will, youcan control what happens to your estate when you die. A Will takes effect as though it had been executed immediately after the death of the testator (subject to a contrary intention in the Will).
Benefits Of Having A Will
You can provide for your loved ones after your death
You can avoid (or at least, minimize) disputes about what happens to your estate when you die
You can leave financial legacies to charities or other organisations if you so wish
You can appoint a guardian if you have young children
Having A Will Gives You Peace Of Mind For The Future
Bahamian Wills
Anyone – even if you are domiciled in another jurisdiction – can make a Bahamian will in relation to any assets owned in The Bahamas.
A Bahamian Will is likely to be admitted to probate more quickly than a foreign Will – which means the estate can be administered more speedily. It is, therefore, advisable to have a Bahamian Will in place if you own land and property in The Bahamas. Whilst foreign Wills can deal with Bahamian property – problems can arise if the will is not drafted with sufficient care.
Normally, a new Will revokes any previous Wills. However, a Bahamian Will can be drafted in such a way that, if required, a previous Will remains valid (or it can be drafted to limit the extent to which such an existing Will is revoked). It is critically important to take expert legal advice if you wish to make a Bahamian Will, particularly if it is to complement – and not replace – an existing Will.
What Information Do I Need To Make A Will?
It is useful to think about what details are needed in order to make a Will. Your lawyer will require the following information to properly advise you and draft the Will according to your wishes:
Your full name and address, including any aliases or other names by which you are known
The name and address of your chosen executor/s (and trustees if separate individuals)
Details of any land and property (to include bank accounts, annuities, life insurance policies etc.) including information about any related mortgages and legal charges
Specific wishes in relation to your funeral, burial or cremation
Details of your chosen beneficiaries and what items, legacies and property they are to inherit
Details of the residuary beneficiary/ies. The residuary estate is everything left over once any debts, expenses and specific legacies and gifts have been paid or distributed
Details of who is to inherit your chosen beneficiaries’ shares should any predeceased you
Your chosen guardian/s for any of your children who are minors at the date of your death
Copies of any other testamentary documents such as a previous Will
Who Should I Leave My Estate To?
In short – it’s your choice. However, it is essential to consider the following:
Do you have any dependants? If you are financially supporting someone (a disabled relative for instance) you need to consider whether your Will should allow sufficient financial support for any such individual. If your Will inadequately provides for a dependant at the date of your death, legal action for provision could follow;
If you are leaving land or property, are there joint owners? This will impact on the extent of what you can legally dispose of under your Will and expert legal advice is needed;and
Do you wish to establish a trust? If your Will is to include a trust to benefit your children or grandchildren (or another class of individual), expert advice is necessary.
Mental Capacity
Anyone over the age of 18 years can make a Will, so long as they have the mental capacity to do so. Where there is any doubt about a testator’s mental ability to make a Will and/or to understand what he or she was doing during the will making process or what its impact would be, it could be challenged in the courts after the testator’s death.
Execution of Your Will
A Will must comply with the strict legal requirements for executing a Will under The Wills Act. If your Will is not properly executed it is likely to be deemed invalid on your death which means it is ineffective (you will be deemed by the law as having died intestate).
The legal requirements for executing a Will are:
The Will must be in writing and signed by the testator (or by another person in his presence but by the testator’s direction). The testator’s ‘mark’ may be sufficient instead of a signature;
It must appear that the testator intended by his signature to make the Will take effect by that signature;
The signature must be witnessed by at least two witnesses present at the same time
A witness must not be a beneficiary under the Will, nor the spouse (or civil partner) of a beneficiary; and
Each witness must attest and sign the Will or acknowledge the signature in the presence of the testator.
It is prudent to avoid DIY wills: each individual deserves expert legal advice on how their Will can best protect their interests in their unique family and business circumstances. DIY wills are fraught with problems which invariably arise after the testator’s death. Examples include ambiguously drafted clauses and incorrect execution of the Will.
How can we Help?
The expert wills and probate attorneys at Bahamian law firm Parris Whittaker are available to give you expert, sympathetic advice in relation to your Will. Contact us now.
