Too often when the discussion of creating a Will comes up, the response is something like, “me nah make no will and call down death pon me” or some other similar expression. This is simply not true and it is encouraged that you consider making a Will today.
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 departing to be followed through. In my opinion, this is the main benefit of having a Will. Preparing a Will reduces the likelihood of disappointment and family conflict in dealing with the assets of the deceased.
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, and they are not divorced. Let’s say Mr. A was married to Mrs. A and then Mrs. A left the home owned by Mr. A after a few years of marriage. Mr. A gets over the heartbreak, moves on and enters a relationship with Ms. B. He then moves her into his home and they build a loving relationship and have been together for 11 years. Mr. A suddenly dies and leaves no Will.
By law, when a person dies without a Will, the laws of intestacy would apply. The laws of intestacy provide that the two first class of persons entitled to benefit from the assets of the deceased’s estate in terms of order of priority would be the spouse and children.
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 executed Will, he could have made provisions for Ms. B to benefit from his estate, including leaving the property to her.
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.
The same approach obtains if a parent wishes for one or some of their children not to benefit from their estate for whatever reason on their death. If a Will was not done to make gifts to the specific children the testator desires to benefit, the rules of intestacy would apply causing all children of the deceased to benefit equally from the deceased’s estate.
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
- It is best to 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. Schedule an appointment with us today to discuss your testamentary wishes.
