Tuesday, April 23, 2024

EVERYDAY LAW: Of wills and marriage

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I RECEIVED two further queries concerning wills over the past week. One writer wanted to know whether a spouse could be an attesting witness to a will; the other wanted to know whether marriage has any effect on a previous will.Both questions are important and emphasise why it is prudent to have your will drawn by a legal practitioner.The first query is dealt with in Section 66 of the Succession Act which provides as follows:(1) If a person attests the execution of a will, and any devise, bequest, estate, interest, gift or appointment, of or affecting any property (other than charges and directions for the payment of any debts) is given or made by will to that person or his spouse, that devise, bequest, estate, interest, gift or appointment shall, so far only as concerns the person attesting the execution of the will, or the spouse of that person, or any person claiming under that person or spouse, be utterly null and void.(2) The person so attesting shall be admitted as a witness to prove the execution of the will, or to prove the validity or invalidity thereof, notwithstanding such devise, bequest, estate, interest, gift or appointment.The above section essentially provides for two things. First, it invalidates a gift to an attesting witness or his spouse. Secondly, it provides that notwithstanding the invalidity of the gift the will is valid andsuch a witness can be admitted as a witness to prove the validity of the will.As far as the second query is concerned, in some jurisdictions marriage has the effect of revoking a will no matter what the circumstances, and a testator must make a will after marriage if he wants his property to devolve by will. In Barbados, Section 69 of the Succession Act preserves a will against revocation by a subsequent marriage if it is made in contemplation of that marriage and so expressed in the will.Put another way, the subsequent marriage of a testator will revoke a will unless the testator made express provision in the will to the effect that the will is being made in contemplation of or taking into account the marriage of the testator to a particular person. From time to time, beneficiaries have been disappointed by the fact that they were unaware that the marriage of the testator had revoked their will.Especially where prospective testators are young, it is very important that they be informed of the above provision so that they can either delay the making of the will until after marriage or they can make  a new will after marriage. •Cecil McCarthy is a Queen’s Counsel. Send your letters to: Everyday Law, The Nation, Fontabelle, St Michael. Send your email to cnmcc@caribsurf.com

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