The government has enacted the recently passed bill to allow a person to acquire the estate of a spouse who has died without leaving a will.
With President Irfaan Ali’s assent, as confirmed by the Official Gazette, the Civil Law of Guyana (Amendment) Act 2021 is now law.
The bill was passed by the National Assembly early last Tuesday morning, ahead of the annual parliamentary recess.
Attorney General (AG) Anil Nandlall SC, who tabled the bill, said while it was “small in form,” its impact will be “monumental,” particularly for women in common-law unions, whom he said can expect to be given more power and equality because of its non-discriminatory nature.
The bill’s explanatory memorandum explained that with the change, the surviving spouse of the intestate shall “take the whole of the estate” but only “after all debts, funeral expenses, and just expenses have been deducted.
The bill amended Section 5(1) (b) of the Civil Law of Guyana Act, which previously provided for the surviving spouse to be given one-half of the estate, after which the remainder had to be equally distributed among the deceased’s next of kin.
Nandlall told the House on Tuesday that the bill represented efforts at removing what he described as “vestiges of colonialism, archaic, and anachronistic concepts and principles” and to bring the laws in line with a more “forward thinking ethos.”
In his pitch for support for the bill, the AG explained the principles of property-division in the case where a husband dies intestate, which sees one-third being given to the wife and two-thirds to the children in equal shares.
In the circumstance where there is no wife, he said that the property will then be given to the children in equal shares. Where there are no children, but a wife, he said that a half of that property goes to the wife and the remainder goes to the mother-in-law and father-in-law or the mother and father of the deceased. Where those parents are dead, he said that the property then goes further down the line to the siblings and so on.
“We are changing that this morning [Tuesday morning], because women right across this country face a dilemma,” Nandlall said.
While noting that men also face some difficulty in that regard, he said that it is women who, in more practical cases are confronted with the dilemma. “They live with the husband…they live with the man, for all intent and purposes as his wife…they have no children…and when the man dies, the woman has to share the matrimonial property which she may have contributed to, with the in-laws—either her mother-in-law or father-in-law, or her brother-in-law or sister-in-law.”
He said that in practice this is a problem with which the courts are regularly confronted, while noting that peaceful co-existence with in-laws “may not be so easy to accomplish,” which results in serious problems manifesting in physical fights and warranting the eventual intervention of the court.
Against this background, the AG said that government does not believe in perpetuating an anachronistic relic of a colonial law “and that is what, Mr. Speaker, this simple bill does,” he told the House, adding that it will give women power and equality.
He said that men, too, will benefit, while noting that a series of fundamental rights and freedoms in the Constitution seek to remove distinction between any gender and class of persons and that the amendment is part of a genus—to remove any type of discrimination and to unshackle the surviving spouse, who would otherwise have to share the matrimonial property, acquired during the union, with persons outside of the union.
Such a law, he said, was unjust and promoted a culture of discrimination and was why the amendment was needed.
The bill was essentially supported by the main opposition coalition APNU+AFC but not without concerns.
In his presentation on the bill, opposition APNU+AFC coalition Member of Parliament (MP) Shurwayne Holder said that “as well-intended as the bill might be,” it creates an opening for “deep-seated” social issues within families, thus warranting the need for greater consultation.
He said that not only has government broached enacting the amendment in a discriminatory manner, it failed to consult with the people and the opposition.
He added that he had “no major issue with the bill” since the opposition believes in the empowerment of the people, more so women, equality, fairness and justice, but argued that there were deficiencies in the bill and implications for the public.
He said that while the bill on the surface seems to have the laudable objective of removing potential conflicts between the surviving spouse and the next of kin of the deceased spouse, it fails to consider a number of other problems.
According to him, the government failed to consider from a practical standpoint, the issue of a marriage which only endured for “let’s say an hour, days or weeks,” and that where a spouse dies. “Unfortunately in these circumstances, the bill as proposed would deny the next of kin of the deceased spouse of an intestate benefit,” he said.
Like the AG had done, Holder, too, presented the House with a scenario to make his point.
He submitted the scenarios where a man lives with his mother for years, becomes successful in business, decides to get married in his 40s and dies childless and intestate within a few days. In such a case, he said, the entire estate goes to that surviving spouse.
According to Holder, such scenarios needed to be contemplated and its effect examined before the passing of the bill as he noted that while the laws here do not cater for prenuptial agreements, they should, to go hand-in-hand with the amendment.
Sexist
Meanwhile, APNU+AFC MP Juretha Fernandes, in her contribution to the debate, said that the bill is gender-neutral and that she sees nothing outstanding about it for the benefit of women, as touted by the AG.
She said that the AG in fact seeing it as particularly beneficial to women was sexist as she argued that women “have come a long way in society” and are more independent. In “many cases it is the man that is living by the woman just to set the record straight.”
While noting that she is not opposing the bill, Fernandes said that the AG made his pitch for it as a simple matter, when it is not. Against this background, she said that the cultural norms of society needed to be considered and the associated effects of the amendment.
According to her, the vast majority of Guyanese do not have a will, or have not considered writing a will and the culture of marriage here is not one where couples discuss who would benefit from their estate after death.
Another key that ought to have been considered, she said, is that Guyanese generally have extended family settings and in many instances a married couple begin their lives together sharing a family home.
Against this background, she said that when amendments are being made, it is important for the public to be sensitised as societal norms would indicate that people will not automatically “switch to a new law.”
While commending it as a move in the right direction, Fernandes made her own pitch for public sensitization of the features the amendment aims to provide as opposed to it being implemented in an “ad hoc” manner.
How it should be
Also throwing her support behind the bill was Minister of Tourism, Industry and Commerce Oneidge Walrond, who said that it should not be that death of one spouse should threaten and destabilize the social and financial well-being of the surviving spouse.
She sought to explain that the bill guards against such misfortune, while arguing that “this is how it should be.”
Walrond said it must be recognised that the amendment does not inhibit or prohibit personal choice as persons are entitled to set out exactly how they wish their estates to be handled through a will by stating who should, and how they should benefit.
The amendment, she reminded, applies only in the circumstance where a spouse dies intestate, while noting that the statute can therefore be avoided by simply making a will.
APNU+AFC MP and shadow Minister of Foreign Affairs Amanza Walton-Desir also said that she was not opposed to the amendment but noted that persons may have questions surrounding how they may be able to cater for their surviving parents in the context of the amendment.
On this point, she echoed Walrond’s sentiments of citizens being aware of the alternative of preparing a will.
She noted that anyone with property and assets should have a will and underscored the importance of it being updated in accordance with any changes in the person’s life, such as being married and having children and he like.
She said that administering an estate is usually a long and expensive procedure and so one should have a will.
She said, however, that the passage of the bill should include the needed public awareness of what it offers, while adding that the opposition will not oppose just for the sake of opposing but that where a policy has merit it will offer support in the benefit of the people.
