Category: Legal Tidbits

Since 2011, the Legal Profession Act passed in Grenada set up a General Legal Council (“GLC”), comprised not only of a judge and certain categories of attorneys-at-law, including the Attorney-General, but also, of members of the wider society, namely, one nominated by the Conference of Churches and two by the Governor-General.

One of its functions is to receive and determine complaints about the conduct of attorneys-at-law, and the pronounce punishment, if the complaint is just.

While there have been various challenges to the GLC becoming fully functional over the years, perhaps as a COVID gift, in 2021, the GLC has finally started to hear and determine complaints.

Complaints may be lodged in forms available at the Office of the Secretary to the GLC, being the Registrar of the Supreme Court, whose office is in the Peters’ Photo Studio Building, Church Street, St. George’s.

Simply put, a will is a written instrument, signed by a person (called a testator, where male; testatrix, where female) in the presence of two (2) persons, and which becomes effective upon death.

Of course, there are several more technical rules involved in witnessing and executing.

What many persons do not know is that, under Grenada’s laws, and this is a common principle in legal systems whose laws are based on the English legal system, marriage revokes a will.

Therefore, no matter how well thought out, well written, properly executed, or properly witnessed a person’s will is, once that person marries after executing that will, poof! That person no longer has a valid will and needs to either immediately execute a new one or risk dying intestate.

Prior to the passage of the Status of Children Act (“the Act”) by the Parliament of Grenada in 1991 , children born out of wedlock suffered the disability of being unable to inherit property when a father died intestate.

The Act was specifically intended to “remove the legal disabilities” of children born out of wedlock.

What the Act did was to create a gateway for those children to achieve equal status with children born in wedlock.

This is one of the most responsive pieces of legislation. It recognises the cultural reality in Grenada, and the wider English-speaking Caribbean where similar legislation has been passed, that by and large, a significant percentage of the population is born out of wedlock.

There are certain scenarios defined in the Act which create an automatic presumption of paternity, for instance, entry of the name of the father on the child’s birth certificate.

Where an automatic presumption does not arise, the High Court of Grenada has to be persuaded by evidence concerning the relationship of the parents and the man’s relationship with the child. Once persuaded, the declaration will be made.

Applications for declarations of paternity can be made during a man’s lifetime, or after, but where it is being made after, the standard of proof is much higher.

The Act therefore has significant implications for inheritance of property where a man dies intestate in Grenada, or a man is domiciled in Grenada at the date of his death, and has children out of wedlock.

Of course, there is a proviso, that is, a protection for estates already distributed before the Act and or before the declarations of paternity are obtained, but the Act still represents considerable inroads into the law of succession for children born out of wedlock.

When someone who was domiciled in Grenada at the date of death dies without a will, any and everything he/she owns, that is, his or her estate, is inherited according to a set prescription of Grenada’s intestacy laws.

The person who died without a will or valid will is referred to as an “intestate” person.

In the order and proportions shown, the following persons are entitled to inherit:

• ½ to surviving spouse and ½ to child/children equally;

• If no spouse, all to child/children equally;

• If spouse but no child/children, then ½ to spouse, and ½ as if the intestate had not been married;

• If no spouse or children, then father and mother equally or whichever of them, should any or both survive the intestate;

• If no spouse, children or parents, then brothers and sisters, whichever number of them survives the intestate;

• If no spouse, children, parents or siblings, then grandparents, if any of them survives the intestate;

• If no spouse, children, parents, siblings or grandparents, then aunts and uncles, if any of them survives the intestate;

• If no spouse, children, parents, or grandparents, but there are children of either siblings, aunts or uncles, who at the date of the ideath of the intestate are alive and have already turned age twenty-one (21) or already married, then those nieces and or nephews and cousins will all inherit equally; and

•  If there are none of the persons above, then the Crown (ie, Government) becomes entitled to the intestate’s property.

I received an inquiry recently: is there a standard (legal) fee for legal (services) …; is there a norm, or is it that each lawyer charges according to their whim and fancy?

To answer, a brief context: The Grenada Bar Association is a non-profit organisation to which each person admitted to practice as an attorney-at-law in Grenada might apply for membership. Membership is entirely optional. It is not a requirement of admission or to remain a person entitled to practice that one must be a member. It is not a legal prescription that each attorney-at-law/lawyer abides by the mandates, suggestions or agreements of the Association.

Notwithstanding, traditionally, most attorneys-at-law subscribe to membership and accept the leadership of the Bar Association in most matters governing the profession, and indeed widely affecting legal practice in Grenada.

This is true too on the matter of legal fees. From time to time, the Bar Association will consult, confer and agree upon a scale of fees in relation to non-contentious matters, which scale is expected to represent and suggest to its membership what charges are reasonable for professional services.

It may be accurate to say that the settled scale has not been revised and circulated more than twice in the past two decades, and that is generous, because this may well have been once. There is a current revision but it remains uncirculated amongst members of the Bar Association.

Certain items of work are chargeable on the basis of percentages of the value of the transaction. Where this is so, often, it is scaled so that the higher the value, the percentage is scaled downwards, calculating in bands.

Yet other items of work are charged on a flat fee basis.

Where the scale of fees make no specific prescription or suggestion, attorneys-at-law in Grenada are expected to charge by reference to various factors, including the complexity of the matter and the seniority of the legal practitioner delivering the services.

It is the goal of the Legal Profession Act passed in 2011 that the scale of fees would be given statutory teeth, but nearly a decade on, this is yet to happen.

We have been conditioned to think of a law suit filed in a Court as the way to resolve our disputes, in spite of backlog, expense, and general unhappiness with the process.

In Grenada, mediation is a successful complement to and substitute for the Court.

Mediation allows persons in dispute to determine their own solution. They do so with the assistance of an impartial third person, a “mediator.”

It can be agreed upon prior to the dispute arising, as in a contract, or after the dispute has arisen, before court action is filed, or after; and even after a judgment is obtained.  

The persons must agree to the process and the mediator. The Mediation Center attached to the Supreme Court of Grenada is available for the conduct of all mediations.

Hallmarks of mediation:

1. Far cheaper than a lawsuit;

2. Confidentiality, protected by the Court;

3. A mediation agreement is like a contract, usually enforceable by a Court;

4. Because the terms were voluntary, compliance is more likely; and

5. Parties get the opportunity to tell each other what the problem really is, which often does not happen in Court, so that a court judgment does not fully resolve the dispute.

Many persons find it financially wise or necessary to borrow monies to acquire property, and this borrowing is secured by something called a mortgage.

A mortgage to a lender is mostly done by way of a legal mortgage, by signing a deed prepared by an attorney-at-law admitted to practice in Grenada to transfer the legal title to the property to the lender.

In a few instances, an equitable mortgage might be enough, which is done by depositing your original deed(s) with the lender as a security document to strengthen you promise to repay the borrowing.

When you give a legal mortgage, your interest remaining in the property is called “the equity of redemption”, that is, an interest to have the legal title re-transferred to you, by way of deed, once you repay the indebtedness.

Where you have given a legal mortgage, it is not enough for you to simply collect your original deed(s) from the lender when you repay in full.  You must also engage an attorney-at-law admitted to practice in Grenada to prepare a deed called a reconveyance.

Only if the mortgage had been equitable would it suffice for you to simply collect your deed(s) from the lender.

In Grenada, the law recognises two types of joint ownership of the absolute interest in the property: joint tenancy and tenancy in common.    

Joint Tenancy

The owners are called joint tenants. They must all agree on any future transfer of the property.  If one of them dies, the remaining owner(s) becomes entitled to the whole of the property.  It is not inherited by the persons entitled to the deceased person’s estate unless a will in special technical form is made by all joint owners. 

Tenancy-in-Common

The owners are called tenants in common. They do not need to agree with each other on what they want to do with their share. Upon death, their interests pass to their heirs, either by will, or in the absence of a will, by the laws of intestacy.