CHAPTER
115
WILLS |
ARRANGEMENT OF
SECTIONS |
PART I
PRELIMINARY |
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PART II
WILLS |
Property disposable by will. |
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Formalities for execution of wills. |
Wills with foreign element. |
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Testamentary execution of power. |
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Effect of dissolution of marriage. |
Alteration in circumstances. |
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Alteration after execution. |
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Subsequent conveyance or acts. |
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Devise of real estate without words of
limitation. |
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Devise to trustees or executors. |
Devise to trustee without express limitation. |
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Gift to child who predeceases testator. |
Devise of real estate to more than one person. |
PART III
RECTIFICATION AND INTERPRETATION OF WILLS |
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PART IV
WILLS EXECUTED OUTSIDE THE BAHAMAS |
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General rule for formal validity. |
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Certain requirements to be treated as formal. |
Change of domicile of testator. |
PART V
MEMBERS OF DEFENCE FORCE, MARINERS AND SEAMEN |
Members of defence force, mariners and seamen. |
Explanation of section 39. |
|
Validity of testamentary dispositions of real
property. |
Power to appoint testamentary guardians. |
PART VI
GENERAL |
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FIRST SCHEDULE - Structure of a Will. |
SECOND SCHEDULE - Repeals. |
CHAPTER 115 |
WILLS |
An Act to
make fresh provisions relating to the law of wills; and for connected purposes. | 4 of 2002 |
[Assent 31st
January, 2002]
[Commencement 1st February, 2002] |
PART I
PRELIMINARY |
1. This Act may be cited as the Wills Act, 2002. | Short title. |
2. (1) In this Act- | Interpretation. |
"child"
or "issue" means a child born in wedlock or an adopted child and
includes a child en ventre sa mère; |
"personal
estate" includes leasehold estates and other chattels real, and also
moneys, shares of government and other funds, securities for money (not being
real estate), debts, choses in action, rights, credits, goods and all other
property whatsoever which by law devolves upon the executor or the
administrator, and any share or interest therein; |
"real
estate" includes messuages, lands, rents and hereditaments, whether
freehold or of any other tenure, and whether corporeal or incorporeal or personal,
and any undivided share thereof, and any estate, right or interest (other than
a chattel interest) therein; |
"will"
includes a testament, a codicil, an appointment by will or by writing in the
nature of a will in exercise of a power, and any other testamentary
disposition. |
PART II
WILLS |
3. Subject to this Act, every person may dispose by
will executed in accordance with this Act all real estate and all personal
estate owned by him at the time of his death. | Property disposable by will. |
4. To be valid, a will shall be made by a person who- | Capacity to make a will. |
(a) is aged
eighteen years or over; and |
(b) is of sound
disposing mind. |
5. (1) Subject to section 6, no will is valid unless it
is in writing and signed at the foot or end thereof by the testator or by some
other person in his presence and by his direction in accordance with subsection
(2). | Formalities for execution of wills. |
(2) The signature
of the testator or other person mentioned in subsection (1) is effective if- |
(a) so far as
its position is concerned it satisfies subsection (3); |
(b) the
signature is made or acknowledged by the testator in the presence of two or
more witnesses present at the same time; and |
|
(i) attests
and signs the will; or |
(ii) acknowledges
his signature, |
in the
presence of the testator (but not necessarily in the presence of any other
witness), |
but no form
of attestation is necessary nor is publication of the will necessary. |
(3) So far as
regards the position of the signature of the testator, or of the person signing
for him- |
(a) a will is
valid if the signature is so placed at, after, following, under, beside or
opposite the end of the will that it is apparent on the face of the will that
the testator intended to give effect, by the signature, to the writing signed
as his will; |
(b) no will is
affected by the circumstances that- |
(i) the
signature does not follow, or is not immediately after, the foot or end of the
will; |
(ii) a
blank space intervenes between the concluding word of the will and the
signature; |
(iii) the
signature is placed among the words of the testimonium clause or of the clause
of attestation or follows or is after or under the clause of attestation,
either with or without a blank space intervening, or follows or is after, under
or beside the names or one of the names of the subscribing witnesses; |
(iv) the
signature is on a side page or other portion of the paper or papers containing
the will whereon no clause or paragraph or disposing part of the will is
written above the signature; or |
(v) there
appears to be sufficient space to contain the signature on or at the bottom of
the preceding side, page or other portion of the same paper on which the will
is written, |
and the
enumeration of the circumstances in paragraph (b) does not restrict the
generality of this subsection, but no signature under this section operates to
give effect to any disposition or direction which is underneath or follows it,
nor does it give effect to any disposition or direction inserted after the
signature is made. |
(4) No person is a
competent witness to the execution of a will if he attests the will in any
manner other than by signing his name in his own handwriting. |
(5) A guide as to
the formalities of a will is set out in the First Schedule. |
6. (1) The Minister may make regulations governing the
validity and recognition of wills and other testamentary dispositions with a
foreign element or executed on board a vessel or aircraft or which, for any
other reason, may not comply with the law of The Bahamas. | Wills with foreign element. |
(2) In making
regulations under subsection (1), the Minister may have regard to any
convention providing a uniform law on the form of an international will or
otherwise dealing with the conflict of laws relating to testamentary
dispositions. |
7. Where a testator who- | Governing law. |
(a) is not
domiciled in The Bahamas; |
(b) is
disposing of property situate in The Bahamas, |
expressly
declares in his will that the laws of The Bahamas shall be the governing law of
the disposition, such declaration shall be valid, effective and conclusive regardless
of any other circumstance. |
8. A will executed in accordance with section 5 or 6
is, so far as respects the execution and attestation thereof, a valid execution
of a power of appointment by will, notwithstanding that the instrument creating
the power expressly requires that a will made in exercise of such power should
be executed with some additional or other form of execution or formality. | Testamentary execution of power. |
9. Subject to subsection (3) of section 5, if any
person who attests the execution of a will becomes at any time afterwards
incompetent as a witness to prove the execution, the will is not invalid on
that account. | Incompetency of witness. |
10. (1) Subject to subsection (2), if a person who
attests the execution of a will is a person to whom or to whose spouse any
interest is given by the will (whether by way of gift or by way of exercise of
a power of appointment, but other than and except charges and directions for
the payment of debts), the gift or appointment is void so far as it concerns
such an attesting witness or the spouse of the witness or any person claiming
under the witness or spouse, but the attesting witness is competent as a witness
to prove the execution or to prove the validity or invalidity of the will
notwithstanding the gift or appointment mentioned in the will. | Gift to witness. |
(2) Attestation of
a will by a person to whom or to whose spouse there is given or made any such
disposition as is described in subsection (1) shall be disregarded if the will
is duly executed without his attestation and without that of any other such
person. |
(3) This section
applies to the will of any person dying after the commencement of this Act,
whether executed before, on or after the commencement of this Act. |
11. If a will charges any property with any debt, and- | Attestation by creditor. |
(a) any
creditor whose debt is so charged; or |
(b) the spouse
of any such creditor referred to in paragraph (a), |
attests the
execution, such an attesting witness is competent, notwithstanding the charge,
as a witness to prove the execution or to prove the validity or invalidity of
the will. |
12. No person is incompetent on account of his being
an executor of a will as a witness to prove the execution or to prove the
validity or invalidity of the will. | Attestation by executor. |
13. (1) Subject to subsections (2), (3) and (4), a
will is revoked by the testator's marriage. | Revocation by marriage. |
(2) A disposition
in a will in exercise of a power of appointment shall take effect
notwithstanding the testator's subsequent marriage unless the real or personal estate
so appointed would in default of appointment pass to his personal
representatives. |
(3) Where it
appears from a will that at the time it was made the testator was expecting to
be married to a particular person and that he intended that the will should not
be revoked by the marriage, the will shall not be revoked by his marriage to
that person. |
(4) Where it
appears from a will that at the time it was made the testator was expecting to
be married to a particular person and that he intended that a disposition in
the will should not be revoked by his marriage to that person- |
(a) that
disposition shall take effect notwithstanding the marriage; and |
(b) any other
disposition in the will shall take effect also, unless it appears from the will
that the testator intended the disposition to be revoked by the marriage. |
14. Where after the testator has made a will, a decree
of a court dissolves or annuls his marriage or declares it void- | Effect of dissolution of marriage. |
(a) the will
shall take effect as if any appointment of the former spouse as an executor or
as an executor and trustee of the will were omitted; and |
(b) any devise
or bequest to the former spouse shall lapse, |
except in so far as a
contrary intention appears by the will. |
15. No will is revoked by any presumption of an
intention on the ground of an alteration in circumstances. | Alteration in circumstances. |
16. No will, or any part thereof, is revocable
otherwise than- | Revocation generally. |
(a) in
accordance with section 13; |
(b) by
another will; |
(c) by some
writing, declaring an intention to revoke the will, executed in the manner in
which a will is required to be executed; or |
(d) by the
testator, or some person in his presence and by his direction, burning, tearing
or otherwise destroying the will, with the intention of revoking it. |
17. No obliteration, interlineation or other
alteration made in any will after its execution is valid or has any effect so
far as the words or effect of the will before the alteration are not apparent,
unless the alteration is executed in the manner in which a will is required to
be executed; but the will with the alteration as part of it is duly executed if
the signature of the testator and the signature of the witnesses are made in
the margin or on some other part of the will opposite or near the alteration or
at the foot or end of, or opposite to, a memorandum referring to the alteration
and written at the end or some other part of the will. | Alteration after execution. |
18. (1) No will or any part thereof which has been
revoked is revived otherwise than by- | Revival of revoked will. |
(a) re-execution
of the revoked will; or |
(b) a codicil
showing an intention to revive the revoked will. |
(2) Where any
will, which has been, first, partly revoked, and later wholly revoked, is
revived, the revival does not extend to the part revoked before the revocation
of the whole will unless an intention to revive that part is shown. |
19. No conveyance or other act made or done
subsequently to the execution of a will of or relating to any real or personal
estate referred to in the will (except an act which revokes the will in
accordance with section 13 or 16), prevents the operation of the will with
respect to the estate or interest in that real or personal estate of which the
testator has power to dispose by will at the time of his death. | Subsequent conveyance or acts. |
20. Every will shall be construed, with reference to
the real and personal estate referred to in it, to speak and take effect as if
it had been executed immediately before the death of the testator unless a
contrary intention appears by the will. | Will speaks from death. |
21. Unless a contrary intention appears from the will,
if a devise fails or is void by reason of the death of the devisee in the
lifetime of the testator or by reason of being contrary to law or otherwise,
any real estate or interest comprised or intended to be comprised in that
devise is deemed to be included in the residuary devise (if any) contained in
the will. | Lapsed and void devises. |
22. A devise of the land of the testator, or of the
land of the testator in any place, or in the occupation of any person mentioned
in his will, or otherwise described in a general manner, and any other general
devise which would describe a leasehold estate, if the testator had no freehold
estate which could be described by it, shall be construed so as to include the
leasehold estates of the testator or any of them to which such description
extends as well as freehold estates, unless a contrary intention appears by the
will. | General devise. |
23. (1) A general devise of the real estate of the
testator, or of the real estate of the testator in any place, or in the
occupation of any person mentioned in his will, or otherwise described in a
general manner, shall be construed so as to include any real estate, or any
real estate to which such description extends, as the case may be, which he may
have power to appoint in any manner he may think proper, and operates as an
execution of such power, unless a contrary intention appears by the will. | General gift. |
(2) A bequest of
the personal estate of the testator, or any bequest of personal property
described in a general manner shall be construed so as to include any personal
estate, or any personal estate to which such description extends, as the case
may be, which he may have power to appoint in any manner he may think proper,
and operates as an execution of such power, unless a contrary intention appears
by the will. |
24. Where any real estate is devised to any person
without any words of limitation, the devise shall be construed so as to pass
the fee simple or other interest which the testator had power to dispose of by
will in such real estate, unless a contrary intention appears by the will. | Devise of real estate without words of limitation. |
25. (1) In any devise or bequest of real or personal
estate the expressions "die without issue", or "die without
leaving issue", or "have no issue", or any other words which may
import either a want or failure of issue of any person in his lifetime or at
the time of his death, or an indefinite failure of his issue, shall be
construed to mean a want or failure of issue in the lifetime, or at the time of
the death, of such person, and not an indefinite failure of issue, unless a
contrary intention appears by the will, by reason of such person having a prior
estate tail or of a preceding gift being, without any implication arising from
such words, a limitation of an estate tail to such person or issue or
otherwise. | Construction. |
(2) This Act shall
not extend to cases where such words mentioned in subsection (1) import if no
issue described in a preceding gift are born, or if there is no issue who live
to attain the age or otherwise answer the description required for obtaining a
vested estate by a preceding gift to such issue. |
26. Where any real estate is devised to any trustee or
executor, such devise shall be construed to pass the fee simple or other
interest which the testator had power to dispose of by will in such real
estate, unless a definite term of years absolute or determinable or an estate
of freehold is thereby given to him expressly or by implication. | Devise to trustees or executors. |
27. Where any real estate is devised to a trustee,
without any express limitation of the estate to be taken by the trustee, and
the beneficial interest in the real estate, or in the surplus rents and profits
thereof, is not given to any person for life, or such beneficial interest is
given to any person for life, but the purposes of the trust may continue beyond
the life of such person, then the devise shall be construed to vest in such
trustee the fee simple, or other the whole legal estate which the testator had
power to dispose of by will in such real estate, and not an estate determinable
when the purposes of the trust are satisfied. | Devise to trustee without express limitation. |
28. Where any person to whom any real estate is
devised for an estate tail or an estate in quasi entail, dies in the
lifetime of the testator leaving issue who would inherit under such entail and
any such issue are living at the time of the death of the testator, then the
devise shall not lapse, but shall take effect as if the death of such person
had happened immediately after the death of the testator, unless a contrary
intention appears by the will. | Devise of estate tail. |
29. (1) Where- | Gift to child who predeceases testator. |
(a) a will
contains a devise or bequest to a child or remoter descendant of the testator; |
(b) the
intended beneficiary dies before the testator, leaving issue; and |
(c) issue of
the intended beneficiary are living at the testator's death, |
then, unless
a contrary intention appears by the will, the devise or bequest shall take
effect as a devise or bequest to the issue living at the testator's death. |
(2) Issue shall
take under this section through all degrees, according to their stock (per
stirpes) in equal shares if more than one, any gift or share which their
parent would have taken and so that no issue shall take whose parent is living
at the testator's death and so capable of taking. |
(3) This section
shall have effect as if- |
(a) the
reference to a child or remoter descendant of the testator includes a reference
to every child or remoter descendant whether or not born in wedlock; and |
(b) the
reference to the issue of the intended beneficiary includes a reference to any
such issue whether or not born in wedlock. |
(4) This section
applies to any will whether made before, on or after the commencement of this
Act, but does not apply to a will in respect of which, before the commencement
of this Act, probate has been granted. |
30. Where real estate is devised to more than one
person as co-owners without any words to indicate that a joint tenancy subsists
between such persons the devise shall be construed as the devise of a tenancy
in common. | Devise of real estate to more than one person. |
PART III
RECTIFICATION AND INTERPRETATION OF WILLS |
31. (1) If a court is satisfied that a will is so
expressed that it fails to carry out the testator's intentions, in consequence- | Rectification. |
(a) of a
clerical error; or |
(b) of a
failure to understand his instructions, |
it may order
that the will be rectified so as to carry out the testator's intentions. |
(2) An application
for an order under this section shall not, except with the permission of the
court, be made after the end of the period of twelve months from the date on
which representation with respect to the estate of the deceased is first taken
out. |
(3) This section
shall not render the personal representative of a deceased person liable for
having conveyed or distributed real or personal estate of the deceased or any
part thereof after the end of the period of six months from the date on which
representation with respect to the estate of the deceased is first taken out,
on the ground that they ought to have taken into account the possibility that
the court might permit the making of an application for an order under this
section after the end of that period. |
(4) Subsection (3)
shall not prejudice any power to recover by reason of the making of an order
under this section any part of the real or personal estate so conveyed or
distributed. |
(5) In considering
for the purposes of this section when representation with respect to the estate
of a deceased person was first taken out, a grant limited to trust property
shall be left out of account, and a grant limited to real estate or to personal
estate shall be left out of account unless a grant limited to the remainder of
the estate has previously been made or is made at the same time. |
(6) Nothing in
this section affects the will of a testator who dies before the commencement of
this Act. |
32. (1) This section applies to a will- | Interpretation of wills. |
(a) in so far
as any part of it is meaningless; |
(b) in so far
as the language used in any part of it is ambiguous on the face of it; |
(c) in so far
as evidence, other than evidence of the testator's intentions, shows that the
language used in any part of it is ambiguous in the light of surrounding
circumstances. |
(2) In so far as
this section applies to a will extrinsic evidence, including evidence of the
testator's intention, may be admitted to assist in its interpretation. |
(3) Nothing in
this section affects the will of a testator who dies before the commencement of
this Act. |
33. (1) Except where a contrary intention is shown, it
shall be presumed that if a testator devises or bequeaths real or personal
estate to his spouse in terms which in themselves give an absolute interest to
the spouse, but by the same instrument purports to give his issue an interest
in the same estate, the gift to the spouse is absolute notwithstanding the
purported gift to the issue. | Gifts to spouses. |
(2) Nothing in
this section affects the will of a testator who dies before the commencement of
this Act. |
PART IV
WILLS EXECUTED OUTSIDE THE BAHAMAS |
34. (1) In this Part- | Definitions for Part IV. |
"internal
law" in relation to any territory or state means the law which would apply
in a case where no question of the law in force in any other territory or state
arose; |
"state"
means a territory or group or territories having its own law of nationality; |
"will"
includes any testamentary instrument or act, and "testator" shall be
construed accordingly. |
(2) Where under
this Part the internal law in force in any territory or state is to be applied
in the case of a will, but there are in force in that territory or state two or
more systems of internal law relating to the formal validity of wills, the system
to be applied shall be ascertained as follows- |
(a) if there is
in force throughout the territory or state a rule indicating which of those
systems can properly be applied in the case in question, that shall be
followed; or |
(b) if there is
no such rule, the system shall be that with which the testator was most closely
connected at the relevant time, and for thispurpose the relevant time
is the time of the testator's death where the matter is to be determined by
reference to circumstances prevailing at his death, and the time of execution
of the will in any other case. |
(3) In determining
for the purposes of this Part whether or not the execution of a will conformed
to a particular law, regard shall be had to the formal requirements of that law
at the time of execution, but this shall not prevent account being taken of an
alteration of law affecting wills executed at that time if the alteration
enables the will to be treated as properly executed. |
35. A will shall be treated as properly executed if
its execution conformed to the internal law in force in the territory where it
was executed, or in the territory where, at the time of its execution or of the
testator's death, he was domiciled or had his habitual residence, or in a state
of which, at either of those times, he was a national. | General rule for formal validity. |
36. (1) Without prejudice to section 35, the following
shall be treated as properly executed- | Additional rules. |
(a) a will
executed on board a vessel or aircraft of any description, if the execution of
the will conformed to the internal law in force in the territory with which,
having regard to the registration (if any) and other relevant circumstances,
the vessel or aircraft may be taken to have been most closely connected; |
(b) a will so
far as it disposes of immovable property, if its execution conformed to the
internal law in force in the territory where the property was situated; |
(c) a will so
far as it revokes a will which under this Part would be treated as properly
executed or revokes a provision which under this Part would be treated as
comprised in a properly executed will, if the execution of the later will
conformed to any law by reference to which the revoked will or provision would
be so treated; |
(d) a will so
far as it exercises a power of appointment, if the execution of the will
conformed to the law governing the essential validity of the power. |
(2) A will so far
as it exercises a power of appointment shall not be treated as improperly
executed by reason only that its execution was not in accordance with any
formal requirements contained in the instrument creating the power. |
37. Where (whether in pursuance of this Part or not) a
law in force outside The Bahamas falls to be applied in relation to a will, any
requirement of that law whereby special formalities are to be observed by
testators answering a particular description, or witnesses to the execution of
a will are to possess certain qualifications, shall be treated, notwithstanding
any rule of that law to the contrary, as a formal requirement only. | Certain requirements to be treated as formal. |
38. The construction of a will shall not be altered by
reason of any change in the testator's domicile after the execution of the
will. | Change of domicile of testator. |
PART V
MEMBERS OF DEFENCE FORCE, MARINERS AND SEAMAN |
39. Any member of the Royal Bahamas Defence Force
being in actual naval, military or air force service, or any mariner or seaman
being at sea, may dispose of his real and personal estate without complying
with the formalities for the execution of a will as set out in section 5. | Members of defence force, mariners and seamen. |
40. In order to remove doubts as to the construction
of section 39, it is hereby declared that the said section 39 authorises and
always has authorised any member of the defence force being in actual military
service, or any mariner or seaman being at sea, to dispose of his personal
estate though under the age of eighteen years. | Explanation of section 39. |
41. Section 39 shall extend to any member of the naval
or marine forces not only when he is at sea but also when he is so
circumstanced that if he were a member of the defence force he would be in
actual military service within the meaning of that section. | Extension of section 39. |
42. A testamentary disposition of any real estate made
by a person to whom section 39 applies, shall, notwithstanding that the person
making the disposition was at the time of making it under eighteen years of age
or that the disposition had not been made in such manner or form as was at the
passing of this Act required by law, be valid. | Validity of testamentary dispositions of real
property. |
43. Where any person dies having made a will which is,
or which, if it had been a disposition of property, would have been rendered
valid by section 39, any appointment contained in that will of any person as
guardian of the infant children of the testator shall be of full force and
effect. | Power to appoint testamentary guardians. |
PART VI
GENERAL |
44. (1) Except where otherwise expressly provided,
this Act applies to wills made before, on or after the commencement of this
Act, where the testator dies after such commencement. | Application of Act. |
(2) Every will
which is re-executed, republished or revived by codicil is, for the purposes of
this Act, made at the time of the re-execution, republication or revival. |
45. The Acts specified in the Second
Schedule are hereby repealed. | Repeals. |
FIRST SCHEDULE (Section 5(5)) |
STRUCTURE OF A
WILL |
THIS WILL is made
by me of
.................................................................................... |
(1) I REVOKE
all previous wills ............................................................................ |
(2) I APPOINT
........................................................................ to be
my executor |
.......................................................................................................................... |
|
(a)
..................................................................................................................... |
(b)
..................................................................................................................... |
(4) I GIVE the
rest of my estate (after payment of my debts, testamentary expenses and the
gifts in clause (3) of this will) to |
DATED this
.................................... day of
........................................ 20 ....... |
SIGNED by
the above-mentioned
................................................................................. |
as his last
will in our joint presence and then by us in his
............................................. |
SECOND SCHEDULE (Section 45) |
REPEALS |
Wills Act,
Chapter 101[i]* |
Wills Act
Amendment Act, Chapter 102[ii]* |
Wills
(Soldiers and Sailors) Act, Chapter 103[iii]* |