BARBADOS

4. Property, Estate And Probate

A. Wills

A will is a legal instrument or document in which a person (the testator/testatrix), sets out how an estate is to be managed or distributed among persons or entities after his death.

Section 59 of the Succession Act Cap. 249 of the Laws of Barbados allows for a person to dispose of all property to which they are beneficially entitled at the time of their death and which on their death devolves on their personal representatives.

Anyone wishing to make a will must have attained the age of 18 years or have been married and be of sound mind. However, a minor, being a soldier in actual military service, or a mariner or seaman being at sea may dispose of his personal and real estate by will.

An inheritance or gift tax does not exist in Barbados law.

Section 61 (1) of the aforementioned Act states that no will shall be valid unless:

  • it is in writing
  • it is signed at the foot or end by the testator, or by some person in the testator's presence and by their direction;
  • the signature is made or acknowledged by the testator in the presence of each of two or more witnesses, present at the same time, and each witness shall attest by their signature the signature of the testator in the presence of the testator, but no form of attestation shall be necessary.

B. Law Of Succession

In situations where the deceased died without leaving a will, the Succession Act makes provisions as to how the estate is to be distributed after payment of all expenses, debts and liabilities and any legal right properly thereout.

It should be noted that the Act sets out in chronological sequence the persons or class of persons who are to benefit from the estate

first, followed by the other class of persons if the class has no such persons therein.

The first group to benefit would be the spouse and issue of the deceased. Section 49 (1) of the Act states that if an intestate dies leaving a spouse and no issue or next of kin, the spouse shall take the whole estate.

Section 49 (2) of the Act states that if an intestate dies leaving a spouse and no issue, but next of kin, the spouse shall take two-thirds of the estate and the remainder shall be distributed in equal shares among the next-of-kin.

Section 49 (3) states that if an intestate dies leaving:

  • a spouse and one child, the spouse shall take two-thirds of the estate and the remainder shall go to the child;
  • a spouse and children, the spouse shall take one-third of the estate and the remainder shall be distributed among the children in equal shares.

The deceased parents followed by the deceased's siblings and their children are second and third in line to benefit from the deceased's estate upon intestacy.

The fourth group to benefit from an intestacy is the next of kin. In default of any person taking the estate of an intestate, the residuary estate of the intestate shall vest in the crown.

C. Conflict Of Laws

A testamentary disposition shall be valid as regards form if its form complies with the internal law:

  • of the place where the testator made it, or
  • of a nationality possessed by the testator either at the time when they made the disposition or at the time of their death, or
  • of a place in which the testator had their domicile either at the time when they made the disposition or at the time of his death, or
  • of the place in which the testator had their habitual residence either at the time when they made the disposition or at the time of their death, or
  • so far as immovables are concerned, of the place where they are situated.

Regardless of where the will was made, or of the location of the assets or of the nationality, domicile or residence of the testator, it is made in the form of an international will complying with the following provisions:

  • it is in writing
  • the testator has declared in the presence of two witnesses and of an authorised person that the document is their will and that they know the contents thereof
  • the signature is made and acknowledged by the testator in the presence of each of two or more witnesses and of the authorised person present at the at the same time and each witness and the authorised person shall attest by their signature to the signature of the testator in the presence of the testator.
  • it is signed at the foot or end thereof by the testator or by some person in their presence and by their direction, and
  • in cases where the testator is unable to sign the will, they have indicated the reason for this to the authorised person and the authorised person has made a note thereof on the will.

There is no restriction on the transfer of property under a will to beneficiaries who reside outside the jurisdiction. The only requirement that needs to be fulfilled to ensure proper title passes to the foreign beneficiary, is that permission be obtained from the Exchange Control Department of the Central Bank of Barbados prior to recording the transfer document at the Land Registry, as the permission is attached to the transfer document.


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© 2012 Society of Trust & Estate Practitioners