If you own property in St. Lucia, it’s time to start thinking about making a Will.
- What is a Will?
A Will is a document made in contemplation of death, by which a person (testator) freely disposes of his/her property with such disposal to take effect on death.
- Should I make a Will?
Yes, we advise that it is in your best interests to make a Will so that your wishes may be fulfilled after death. Assuming that the Will is validly made, this ensures that the persons you intend to give gifts receive them. Additionally, by making a Will, you can gift property to persons who may not be entitled to receive the gift under the law of intestacy (the law which applies where a person dies without a Will), such as an illegitimate child or a friend.
- Does a Will have to be done before a Notary (lawyer)?
No. There are three types of Wills recognized in St. Lucia (1) Notarial (2) English Will (3) Holograph. Only a Notarial Will requires a Notary/Notaries.
A Notarial Will must be made before either two Notaries, or one Notary and two witnesses.
An English Will must be written, signed by the testator and acknowledged by the testator before a Justice of the Peace and one other witness.
A holograph Will must be handwritten and signed by the testator.
- Who can make a Will?
An adult of sound mind and capable of alienating property at the time of making the Will can make a Will.
Therefore, a minor or person declared by a Court to be of unsound mind (interdicted person) to whom a curator has been appointed, or someone certified by a doctor as being of unsound mind, cannot make a valid Will. Similarly, a tutor to a minor or a curator cannot dispose of the property of the minor or interdicted person. Further, someone whose understanding is impaired while in a state of drunkenness cannot make a valid Will for so long as that state persists.
- I am a person who is deaf can I make a Will and what type?
Yes. You may make a Notarial Will provided you can provide written instructions to the Notary and can read the Will.
You may also make an English Will provided your intention and acknowledgment of your signature or mark are manifested in the presence of the witnesses.
You may also make a Holograph Will provided you can sign it.
- I am a person who is blind, can I make a Will?
Certainly, a person who is blind may make a Notarial Will.
- I cannot sign by signature or mark, can I make a Will?
Yes. You may make a Notarial Will.
- Can I make a joint Will with my spouse or another person by the same document?
No. While you may indicate your wish to make a Will to your spouse or another person, each of you must make a Will by a separate document.
- Can minors and persons of unsound mind receive property under a Will?
Yes. While minors, persons declared by a Court to be of unsound mind or certified by a doctor as being of unsound mind cannot make a Will, they may receive property under a Will.
- Can a child not yet conceived or born at the time of the making of the Will receive property under a Will?
A child not in existence at the time of the making of the Will may receive under a Will provided that either, at the time of the death of the testator, they are in existence or are conceived and subsequently born viable.
- I own property in St. Lucia and outside of St. Lucia, can I make two Wills, one in each jurisdiction?
This is a topical question as was recognized during the Bar Association of Saint Lucia’s Professional Development Seminar in March 2023.
In our view, yes, a person may make a Will in St. Lucia covering property owned in St. Lucia, and a separate Will in another jurisdiction covering property owned there. Provided that the later Will is clear that it does not revoke the earlier Will, or provided there is no change of intention stated in the later Will, the later Will does not revoke the earlier Will.
- Can I make a Will and then change my mind?
A testator has the power to revoke his/her Will at any time and replace it with another.
- Who has access to my Will after I make one?
Before your death your Will remains a private document unless you disclose the contents to another person. While you may keep the contents of your Will secret, it is recommended that you let a trusted family member, friend, or your executor/executrix know that you have made a Will and where it is kept, so that effect may be given to your wishes after death.
Upon your death, your Will must be probated which is the formal legal process which gives recognition and effect to your Will. A personal representative (executor/executrix) will be responsible for carrying out the wishes in your Will.
- Some of my beneficiaries under my Will do not wish for me to gift property to the other beneficiaries, what do I do?
A testator’s wishes must not be influenced by what his beneficiaries want or do not want. His beneficiaries do not need to consent to the gifts made under the Will.
- On what grounds can a Will be invalidated?
A Will may be invalidated where it is proved that the testator:
- did not have the capacity to make a Will, or
- did not have knowledge of or approve the contents of the Will, or
- acted under undue influence in making the Will, or
- the formalities for the type of Will made were not met.
Prepared by Sardia Cenac Prospere, Partner and Nina Roheman, Associate.
FLOISSAC, DUBOULAY & THOMAS provides this information for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. This guidance note is not intended to be, and should not be construed as, legal advice for any particular situation and you should not act upon this information without seeking advice from a lawyer. If you have any questions, please feel free to contact us at info@fdt.law.