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With or without will . . .

Just because someone has died owing to the negligence, recklessness or intentional behaviour of another person does not necessarily result in a payment to each and every blood relative. There are laws that govern such scenarios, which are generally outlined in the Succession Act, Chapter 249 of the Laws Of Barbados and the Accident Compensation (Reform) Act.

Inheritance laws are usually fairly clear-cut. Where a person dies leaving a will, then his/her wishes as outlined in that will are usually complied with, unless they breach the said Succession Act.

Where a person dies without leaving a will the law has made provision for that too, so that people don’t kill one another trying to claim what isn’t theirs to claim.

The debts and expenses of the estate are paid first, the undertaker or whoever paid the undertaker gets the first extraction. The Government gets its outstanding taxes (if any), and in any event the balance of the estate cannot be administered, especially where land is involved, without the relevant Tax Clearance Certificate from the Barbados Revenue Authority.

Anyone else to whom the deceased owed money, whether by way of a court judgment or otherwise, comes next. Then the family.

The law is the same whether there is a surviving male or female spouse. In order to qualify as a spouse, you must either be (a) married to the deceased, or (b) have lived with the deceased for five years immediately before death, and you must not have been married to any other person during that time.

Family members descending on a common-law spouse whom they did not like when the deceased was alive does not change the law or the rights of said spouse.

Unless it can be proven conclusively that the spouse and the deceased were either (a) judicially separated; (b) had been living apart for five continuous years immediately before the death; or (c) the spouse had committed an offence against the deceased or a child of the deceased punishable by a minimum of two years’ imprisonment, the rules for distribution are as follows:

1. Spouse, no children and no next-of-kin (blood relatives) –– spouse gets everything;

2. Spouse and one child –– spouse gets two-thirds and the child gets one-third;

3. Spouse and more than one child –– spouse gets one-third and the children equally divide the balance;

4. No spouse –– the children get everything;

5. No spouse and no children –– then the deceased’s parents share equally, or the survivor takes all.

One should always be clear that “outside children” get their share as well.

An application to the Supreme Court for a grant of letters of administration is required where there is no will. The spouse first, all children next, then parents; then anyone else, including creditors, can apply for the grant. If anyone wants to skip over the person who is entitled before them, then consent of that person is required.

I cannot believe I have to keep saying this, but the deceased relative must be buried first and a death certificate obtained before you can even contemplate making such an application.

Under Section 3 of the Accident Compensation (Reform) Act, an action may be brought in relation to the death of a person on behalf of the deceased’s dependants to recover any pecuniary (monetary) loss they have suffered as a result of the death.

For instance, where a man has died and previously contributed $300 per week towards the maintenance of his child, then that would be considered a pecuniary loss to the child. The point is that dependence on the income or other support of the deceased person must be shown. Simply being someone’s mother, father, sister, etcetera, is not enough. The claim is brought by the person to whom letters of probate or administration have been granted on behalf of the persons entitled. The law is very clear on that too.

(Alicia A. Archer is an attorney-at-law.)

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