principles of wills in the bahamas
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Estate Planning: Wills. Questions and answers concerning Bahamian Wills

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Wills are an important part of estate planning. Preparing a Will allows you to direct the distribution of your assets to those whom you wish to receive them after you have died. If you have assets located in The Bahamas it is possible to have a Will prepared with respect to those assets. It is important to know the information about the will on the Bahamas.

Questions and answers concerning principles of Wills in the Bahamas

1. What is it called when a person dies without a Will?

ANS.: When a person dies without a Will they are said to have died intestate or they are the intestate. Intestacy is the state of dying without a Will.

2. What happens when a person with assets in The Bahamas dies without a Last Will and Testament?

ANS.: if a person dies without a last Will and Testament with assets located in The Bahamas the Inheritance Act 2002 provides as follows (this list is not exhaustive as it relates to the succession of the intestate’s estate):

  • The intestate’s surviving husband or wife if there were no children takes the whole of the residuary estate;
  • If the intestate leaves a husband or wife and one child, the surviving husband or wife takes one half of the residuary estate and the other half goes to the child; if there are several children, the surviving husband or wife takes one half of the residuary estate and the other half is distributed equally among the children;
  • If the intestate leaves children but no husband or wife, the residuary estate shall be distributed equally among the children and where there is only one child that child takes the whole residuary estate;
  • If the intestate leaves no husband or wife and no children the residuary estate shall be distributed equally among the grandchildren and where there is only one grandchild that grandchild takes the whole residuary estate.

The succession of the estate may continue all the way to the “next of kin” or closest living relative of the intestate.

Note also The Bahamas does not as yet recognize common law marriages. Therefore, persons living under this type of arrangement are not deemed spouses in Bahamian law.

3. What is meant by “residuary estate” under part II of the Inheritance Act?

ANS.: The residuary estate means every beneficial interest of the intestate in real and personal estate after payment of all funeral and administration expenses, debts and other liabilities that are properly paid out of the estate, which (otherwise than in right of a power of appointment) the intestate could have disposed of by his Will.

4. What is required for a Will to be valid in The Bahamas according to the Wills Act?

ANS.: There are several factors that must be in place for a Will to be valid, however notwithstanding these circumstances are in place a Will can still be challenged. Below is a non exhaustive list of circumstances that must exist for a Will to be valid pursuant to the Wills Act:

  • The Will must be made by someone who is aged 18 years old or over and is of sound disposing mind (NOTE SOUND DISPOSING MIND IS NOT DEFINED IN THE ACT. We derive the definition of “sound disposing mind” from the case of Banks v Goodfellow [1870] LR 5QB 549 – it means capable of making a Will with an understanding of the nature of the business in which he/she is engaged, a recollection of the property he/she intends to dispose of and the persons who are the object of his/her bounty, and the manner it is to be distributed between them, understanding that it will not take effect until their death);
  • The Will must generally be in writing;
  • The Will must be signed at the foot or end by the testator (person whose Will it is) or some other person in his/her presence and by his/her direction.
  • The signature is valid if placed after, following, under, beside or opposite the end of the Will such that it is obvious on the face of the will the testator intended to give effect by his/her signature to the writing signed as his Will;
  • The signing of the Will by the testator must be witnessed by 2 or more witnesses who are present at the same time;
  • Each of the witnesses must either attests and signs the Will; or acknowledges his/her signature in the presence of the testator (but does not have to be in the presence of any other witness.
  • The beneficiary or spouse of a beneficiary (including an executor who will be remunerated) must not be a witness to the Will;
  • The witness signing the Will must be competent to do so (he/she attests the Will in his own name and understands fully what he/she is doing);

5. What if I own assets in The Bahamas, but I am not living (domiciled) in The Bahamas, can I make a Bahamian Will?

ANS.: Yes, Persons with assets in The Bahamas can make a Bahamian Will to distribute these assets. The Wills Act provides that the testator/testatrix not domiciled in The Bahamas must expressly declare in his/her Will that the laws of The Bahamas shall be the governing law of the disposition, a declaration such as this is valid, effective and conclusive regardless of any other circumstance. 

6. What are the effects of a marriage on a Bahamian Will?

ANS.: A Bahamian Will is revoked by the testator’s marriage. If, however, the testator does not intend his/her marriage to revoke the Will or a disposition in the Will, he/she may make a declaration in the Will stating that he/she does not intend that the Will or a disposition in the Will should be revoked by the marriage.

7. What is Probate of a Will?

ANS.: Probate of a Will is the process by which the court reviews an application for the disposition of the estate of the testator or the testatrix, which if favourable, ends in a grant conferring authority on the executor or the administrator of the estate to administer the estate of the deceased person.

8. What information should you provide to your Probate attorney when drafting your Will?

  • Are there any previous Wills;
  • Are there any joint tenancies (joint tenancy is where property is held with another party (or parties), and the share held in the property by one party passes on his/her death to the surviving party or parties);
  • Whether there are any illnesses or medication being taken that may impair the testator;
  • Age of the testator or testatrix must be considered and care taken with those that may seem vulnerable.
  • Is there a marriage contemplated or imminent in the very near future.

Bahamian Wills- Summary

If you are interested in directing what happens to your real and personal property after you are gone it is prudent planning to have a Will drawn up. When speaking with your attorney concerning drafting your Will, you should have an idea of what assets you have and the proper description and location of them. Additionally, you should know who you wish to receive your assets, and there should be no ambiguity with respect to the beneficiary or beneficiaries. You should also have in mind an executor/executrix or several of them who would be capable of attending to the distribution of the estate. Once your Will has been prepared and finalized, you should advise a trusted friend or family member, attorney or professional of the location of your Will, this will ensure that after you have gone your beneficiaries will be aware that there is a Will and can locate it.

Please note that the information provide above and throughout our website is purely for information only and should not be used as legal advice for your matter. All matters have their own set of particular facts and circumstances and to apply a one size fits all approach to any matter can be detrimental to the outcome of your matter. Please therefore consult legal counsel for advice. Our law firm can be contacted at telephone numbers (242) 677-5265 or (242) 356-3835 or email address [email protected] for assistance.

Find out more about preparation of last will in the Bahamas.

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About Author

Yvette C. Rahming is an attorney at law who specializes in corporate and commercial law. She served for nearly a decade as Chief Legal Officer of the Nassau Container Port a blue chip publicly listed Bahamian public private partnership port facility. Yvette is now the Principal of Capital Law Associates serving the needs of local and international clients.