Many people shy away from the topic of making a Will, often saying things like, “Mi nah make no Will and call down death pon miself,” or some other version of that belief. But preparing a Will doesn’t invite misfortune, it prevents confusion and protects the people and property you care about. Creating your Will today is one of the most responsible steps you can take for your family’s future.
Creating a Will is beneficial to both the testator (person making the Will) and to their loved ones. Having a properly executed Will allows the testator’s wishes for his loved ones after they depart be followed through. In my opinion, this is the main benefit of having a Will. Preparing one reduces the likelihood of disappointment and family conflict in dealing with the assets of the testator on their death.
I will illustrate an example to show the benefit of creating a valid Will today.
It is not uncommon that married couples will separate for many years, with either spouse moving on engaging in other relationships, yet they are not divorced. Let’s say Mr. A was married to Mrs. A and then Mrs. A left the matrimonial home after a few years of marriage. Mr. A gets over the heartbreak, moves on and enters a relationship with Ms. B. They build a loving relationship and have been together for 10 years. Mr. A suddenly dies and leaves no Will.
When someone passes away without leaving a Will, their estate is distributed according to Jamaica’s laws of intestacy. These laws determine who inherits and in what order of priority. Generally, if the deceased leaves both a spouse and children, the estate is divided equally between them. In other words, the law, not the individual’s personal wishes, decides how assets are shared, which can often lead to disputes or unintended outcomes.
Based on the law, though Mr. A was separated from Mrs. A, it is Mrs. A who by law would be entitled to benefit from the estate in priority to Ms. B as Mrs. A was still legally married to Mr. A at the time of his death. Though Ms. B was cohabiting with Mr. A in the scenario, the law only recognizes one spouse.
If Mr. A had properly executed a Will, he could have made provisions for Ms. B to benefit from his estate including leaving his share in the property to her, provided of course he was registered as a tenant in common on title with his wife. This distinction is relevant as where two persons are registered on title as tenants in common, their interest is separate on death whereas with joint tenants, the person alive inherits the deceased’s interest in the property.
It is evident then, that another main benefit of having a Will is that it allows persons to benefit from the estate who cannot benefit through the laws of intestacy.
A parent should consider this as without a Will, a parent loses the power to decide who inherits their assets. If a parent intends for only certain children to benefit, or wishes to exclude a child for personal reasons, that intention can be clearly stated in a valid Will. Otherwise, where no Will exists the laws of intestacy will automatically apply, requiring that all the deceased’s children share equally in the estate, regardless of the parent’s true wishes.
Death can be sudden. You should consider making a Will today in the interest of your family. Wills are readily available as generic forms which are sold in pharmacies and bookstores. Will Forms are also available online and can be found on the Administrator General Department of Jamaica’s website.
While those are options, it is always advisable to seek legal consultation to ensure that the Will meets the necessary legal requirements so same is not successfully challenged by anyone through the Courts.
Some important factors to consider in making a Will without the assistance of counsel include:
- Two witnesses must be present at the time the testator signs and must both sign it on the same occasion after the testator signs.
- Testator must have the mental capacity to create the Will and make gifts of his own free will
- Avoid using an intended beneficiary or their spouse to witness the Will
- Must be signed by the maker or an agent at his request but the agent must sign in the testator’s presence
- the signature should be placed at the end or bottom of the Will
Should one of these factors be in issue, there is a risk the Will may not be upheld causing the rules of intestacy to apply.
Will preparation and Estate Administration is an area of law practiced at Kimberlee S. Dobson & Co Attorneys-at-Law. Consider scheduling an appointment with us today to discuss your testamentary wishes.
