Spousal Family Provision (Barbados, Guyana, Jamaica, the Bahamas, Trinidad and Tobago)

• Pages: 319-335

CHAPTER 13

SPOUSAL FAMILY PROVISION

(Barbados, Guyana, Jamaica, The Bahamas,

Trinidad and Tobago)

PART ONE

FAMILY PROVISION

1. THE LEGISLATION – Barbados, Guyana, Jamaica, The Bahamas,

Trinidad and Tobago1

A Introductory

The respective family provision legislation or statutory provisions, as the case may be, of

Barbados, Guyana, Jamaica, Trinidad and Tobago and The Bahamas provide for the surviv-

ing spouse, which includes a statutory spouse with the exception of The Bahamas, to apply for

and obtain a share or larger share of a deceased spouse’s estate, whether on a testacy, intestacy

or partial intestacy of such spouse. Other than the quantum of financial provision which may

be awarded to a surviving spouse applicant in Guyana and Trinidad and Tobago, the legisla-

tion governing spousal family provision in Guyana, Jamaica, The Bahamas and Trinidad and

Tobago is almost identical to the Inheritance Act, 1975 Eng land.

In the case of Barbados, which will be considered separately below, while the provisions

differ from those of Guyana, Jamaica, The Bahamas and Trinidad and Tobago, the effect of

the relevant statutory provisions is essentially the same.

B Estate liable: the net estate

In making an order for family provision, the order is made in respect of the property, real and

personal, which comprises the deceased’s net estate.2The net estate of the deceased includes

any property to which the deceased was beneficially entitled; any property over which the

deceased had a general power of appointment; and property subject to an order under the

anti-avoidance provisions contained in the respective legislation of these five jurisdictions.

However with respect to property held on a joint tenancy by the deceased immediately before

his or her death, the deceased’s share of such property passes on his death, automatically to

the surviving joint tenant and does not form part of his net estate.

1 Barbados – s.103, Succession Act CAP.249; Guyana – Family and Dependants Provision Act Cap.12:24;

Jamaica – Inheritance (Provision For Family and Dependants) Act 1993; The Bahamas – inheritance Act

CH.116; Trinidad and Tobago – ss.94–116, Succession Act Chap.9:02.

2 Guyana – s.2, Family and Dependants Provision Act Cap.12:24; Jamaica – s.2, Inheritance (Provision For

Family and Dependants) Act 1993; Trinidad and Tobago – s.94, Succession Act Chap.9:02; The Bahamas

– s.20, Inheritance Act CH.116.

C Qualifying as a spouse – Guyana, Jamaica, The Bahamas,

Trinidad and Tobago

In Guyana, Jamaica, The Bahamas and Trinidad and Tobago,3a spouse, which includes a

statutory spouse and a former spouse who has not remarried as at the date of the deceased

spouse’s death, may apply for a family provision order. Where the deceased spouse and the

applicant were in the process of divorce proceedings but the deceased dies before the decree

nisi is made absolute the surviving spouse also qualifies as a spouse for purposes of a family

provision order as the marriage has not ended by divorce, but by death.4

However in the case of The Bahamas, s.12 of the Inheritance Act CH. 116 provides that

where a husband and wife have been living apart for a period of twelve months or more, the

court may refuse to make an order for financial provision order if it considers that in all the

circumstances of the case it is just and reasonable to refuse such order.

D Effect of family provision order

The court’s statutory entitlement to make a financial provision order out of a deceased spouse’s

net estate is a powerful judicial weapon as it confers on the court the power to ef fectively vary

the statutory rules of distribution in cases of intestacy, and in cases of testacy, to virtually re-

write the deceased’s will. As Harrison J. noted in the Jamaican case of Williams v Mavaou, with

respect to the impact of the family provision legislation in general, “Prior to the coming into

operation of the Inheritance (Provisions For The Family and Dependants) Act in 1993… the

position in Jamaica was such that the courts did not have the power to vary or disturb testa-

mentary dispositions or testamentary rights on testacy and therefore a member of the family

of the deceased or a person dependent upon him, who was unprovided for, was left without a

remedy in law.”5

2. INTESTATE SUCCESSION: LIMITED INCIDENCE OF FAMILY

PROVISION APPLICATION

While the family provision legislation applies to both intestacy and testacy, the application for

a family provision order is made in the vast majority of instances in cases of testate succession,

in the main, because the law applicable to distribution on an intestacy in the case of a surviv-

ing spouse, which includes with the exception of The Bahamas, a statutory spouse, generally

makes adequate provision for a surviving spouse.

However the Trinidad and Tobago case of Koo v Gall et Al,6provides an example of an

application being made for a reasonable financial provision order on the ground that the laws

of intestacy failed to make such adequate provision. The application was made, and the order

granted, in the main because of the unique intestate laws in respect of the cohabitant in

Trinidad and Tobago combined with the particular facts of the case.

320 Commonwealth Caribbean Family Law

3 Guyana – s.6(a), Family and Dependants Provisions Act Cap12:24; Jamaica – ss.4(2)(a), (d), (e), Inheritance

(Provision For Family and Dependants) Act 1993; The Bahamas – s.12, Inheritance Act CH. 116; Trinidad

and Tobago – s.95 (1)(a), (aa), (b) Succession Act Chap.9:02.

4 See Re Seaford [1968] P. 53.

5 JM 2000 SC 26 at 1.

6 TT 2007 HC 8.