by CECIL MCCARTHY

Dear Mr McCarthy,

My dad retired recently. He is married with three children. He has two other children born prior to his marriage. Recently, he made a statement that everything he owned belonged to his daughters from his wife and nothing to me and my brother. Upon his death if he does not leave a will to that effect, would my brother and my sisters be entitled to any part of his estate?

- ADVISE ME

THE ABOVE LETTER is an edited version of an email which I received a few weeks ago. The letter echoes a growing concern by Barbadians about their entitlement to property.

The answer to the question differs significantly according to whether a will is made.

If there is no will, children of the deceased share equally in his estate whether born within or outside of wedlock. If the deceased dies leaving a spouse, the spouse is entitled to a one-third share of the estate of the deceased and the remaining two-thirds will be divided equally among the children.

If the deceased is not survived by a spouse, the children are entitled to his entire estate divided equally. If the deceased had made a will then that will would take effect, subject to the Succession Act.

Testator's freedom

Under our law, a testator has almost complete freedom of testamentary disposition. A testator could, therefore, opt to exclude any or all of his children from the provisions of his will.

However, Section 100 of the Succession Act permits the court to order that maintenance be provided for children who are minors or who are, because of some mental or physical incapacity, incapable of maintaining themselves.

The maintenance may be by way of periodical payments or by way of a lump sum payment.

If the children have attained the age of 18, there is no requirement that a provision be made by the testator.

A person can, therefore, opt to exclude any of his "adult" children (that is, those who have reached the age of 18) from his will. Unless they can be brought within Section 100 of the Succession Act, they have no means of challenging the provisions of the will.

* Cecil McCarthy is a Queen's Counsel.

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