Changing or Revoking a Will in the Bahamas

July 2013 – ISSUE 13

 It is not only important for you to make a Will, but it is equally important to keep your Will up to date.

You made your Will, time has passed and you have acquired additional assets, you want to change the executor, trustee or a beneficiary named in your Will for whatever reason; or maybe you fell in love and were married or fell out of love and divorced. How does this affect your Will? Life changes do affect your Will and according to the Wills Act Chapter 115 of the Statute Laws of The Bahamas, a Will may be changed and/or revoked by one of the following situations as long as the Will maker (testator) has the mental capacity to make a Will.

1. Revocation by Marriage

A Will is automatically revoked by the testator’s subsequent marriage. The Will, will not be revoked unless at the time the will was made the testator was intending to be married to a particular person. This contemplation of marriage must be described in the testator’s Will and the testator must marry that person he intended to marry. For example, if you made a Will in 1999 and five years later you met someone and shortly thereafter you married that person, your 1999 Will would automatically be revoked. However, if the Will was made at a time when you intended to marry your fiancé and that person was described or named in the Will, your Will would be valid.

Upon the testator’s divorce, annulment of marriage or declaration that the marriage is void, any appointment of the former spouse as an executor/trustee will not have any effect and any gift to the former spouse will fail.

 2. By another will or Codicil

You acquired additional assets which will automatically fall into the residuary clause of your Will, however if you would like to change this or even change the name of the executor (the person administering the estate on your behalf) or even the name(s) of beneficiaries you can change them, that is, if you do not want these additional assets to become a part of your residuary estate, you can make a specific gift or specific gifts to any party or parties as you wish. You may decide to update your Will by adding a codicil to the Will or you can have a new Will made setting out these changes and revoke or cancel the earlier Will. You may ask, what is a codicil? Quite simply, a codicil is a document that amends, rather that replaces a previously executed Will. Amendments made by a codicil may add, alter, explain or confirm an earlier Will. Each codicil becomes part of the Will and must conform to the same legal requirements as the original Will otherwise the change intended will not be effective.

3. Revoking by some duly executed document

A Will can be revoked by some duly executed document, which declares the intention of the testator to revoke the Will. The intention to revoke could be in the form of a letter or note but must follow the same legal requirements which are necessary to make a Will.

4. Revoking by the testator’s destruction of the Will

A Will may be revoked by the testator, or some person in his presence and by his direction, to burn, tear, or otherwise destroy the Will with the intention of revoking it. The testator must also have the mental capacity to revoke the Will. A codicil may be destroyed in the same manner.

It is not necessary to destroy the entire Will in order to revoke the same; revoking only a portion of a Will is sufficient to make it ineffectual, unless the testator reaffirms the contents of his Will in all other aspects. In a decided case, the testator intended to destroy his Will and threw it in a fire, but a devisee (the person named in the Will to receive a gift of real property or land) under the Will took it out of the fire and took it away. Only a small portion of the Will was burnt. The devisee pretended to burn the will in his presence but did not. However, the testator told another person that the devisee had thrown the Will in a fire, but was not sure and never made a new Will. It was found that the testator had revoked his Will by his attempt to burn it.

A Will is revoked by completely marking or crossing out the signature of the testator and his witnesses revokes the will when the names cannot be seen under a magnifying glass. Further, a Will is revoked when an executed duplicate of an original Will is destroyed; however, the person alleging that the Will was destroyed must prove that intention.

Destroying a part of a Will does not revoke the entire Will if the remaining portion is effective without that part that was destroyed. Where a testator destroys the Will on his own, witnesses are not required. However when the Will is destroyed by some other person on his behalf, the destruction must take place by a person, at the testator’s direction and in the testator’s presence.

5. Missing Will

When a Will cannot be found and is missing after the testator’s death, there is a presumption that the Will is revoked. However, if this is not the case evidence would be required to prove same.

by Mikia S. Cooper, Associate

mcooper@halsburylawchambers.com