An individual who asserts an interest in an intestate estate is required to establish the basis upon which he or she claims to benefit. If the individual claims to be a child of the deceased, a parent/child relationship must be established in order to properly ground such a claim.

Where the deceased is female, proof of such a relationship is usually a simple exercise. Invariably, the mother’s name is endorsed on the child’s Birth Certificate and this is sufficient to establish the requisite relationship. However, where the deceased is male the matter is not as simple. It is not uncommon to find that the fathers’ names are not endorsed on the Birth Certificates of their children. Where this is the case, paternity must be established in accordance with the Status of Children Act, which is the governing statute.

Where Paternity is Presumed

Where a married woman has a child, her husband is presumed to be the father until the contrary is proven. The Status of Children Act provides that where a married woman gives birth to a child during her marriage or within ten (10) months after her marriage has been dissolved by death or otherwise, in the absence of evidence to the contrary, the child is presumed to be the child of the husband or former husband, whichever is the case.

Establishing Paternity

If during the time within which the child must have been conceived the mother and her husband were living apart under an agreement to separate or under an Order by the Court for separation or dissolution of the marriage, there is no presumption of paternity.

Also, there is no presumption of paternity where the child is born within ten (10) months after the dissolution of its mother’s marriage whether by death or otherwise and after she has remarried. There is no allowance for a presumption that either the husband of the mother or the former husband is the father of the child in such a case.

The law requires proof of paternity where the deceased’s name is not endorsed on the Birth Certificate of the child. Any individual who claims to be a child of the deceased needs to prove paternity.

Acceptable Proof of Paternity

The Administrator-General’s Department (AGD) accepts a certified copy of the Birth Certificate of the child with the deceased father’s name duly endorsed thereon as sufficient proof of paternity.

Where the father’s name is not endorsed on the Birth Certificate of the child, the following means of proof of paternity are acceptable:

• A form filled in by both parents establishing paternity and signed in the presence of a Justice of the Peace, Clerk of the Court, Registered Medical Practitioner, Minister of Religion, Marriage Officer or Midwife; or
  
• An Affiliation Order made in any Court; or
  
• Declaration of Paternity granted by the Family Court or Supreme Court (for the purpose of succession, the Declaration should state that paternity was established during the lifetime of the father).

Proof of other relationship

The documents required to establish proof of relationship to a deceased person depend on the particular relationship.

A widow/widower of the deceased needs to furnish proof of the marriage. This is done by submitting to the AGD a certified copy of the Marriage Certificate.

It is necessary that a Common Law “Spouse” make an application to the Court for a Declaration that he or she is the spouse of the deceased. In Section 2(d)-(e) of the Intestates’ Estates and Property Charges Act “Spouse” is defined as including:

1. a single woman who has lived and cohabited with a single man as
   if she were in law his wife for a period of no less than five years immediately preceding the date of his death; and
   
2. a single man who has lived and cohabited with a single woman
   as if he were in law her husband for a period of no less than five years immediately preceding the date of her death;
   
   e. “single woman” and “single man” used with reference to the definition of     “spouse” include a widow or widower, as the case may be, or a divorcee.

The individual claiming an interest in the estate as “spouse” must therefore qualify under these provisions in order to obtain the requisite Declaration from the Court.

It is also important to note that only one individual can be regarded as the “spouse” of any deceased, vide Section 2(2):

“Where for the purposes of this Act a person who is a single woman or single man may be regarded as a spouse of an intestate then, as respects such intestate, only one such person shall be so regarded.”

A brother/sister needs to submit their Birth Certificate with name of the parent of the deceased endorsed thereon.

A grandchild has to forward to the AGD the Death Certificate of their deceased parent and their Birth Certificate with the name of the deceased parent endorsed thereon.