Making a will in Jamaica — You're not forever young

Legal Notes

WITH ANTWAN COTTERELL

Wednesday, May 22, 2019

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The implications of human mortality do not usually weigh on the minds of young people. However, as you get older, see your parents become elderly and suffer the loss of loved ones, you might start to appreciate that you will not be here forever. After you are gone, you will not have direct control over your possessions and affairs; only your Last Will and Testament can speak for you.

WHEN DO I MAKE A WILL?

There are some crucial stages of life at which it is recommended that you make a will, even though death can happen at any time. If you fit into one or more of the categories below, you should consider making a will:

1. Married

2. Parent

3. Owning assets (house, cars, shares, investments, etc.)

4. Starting a career

5. Having high-risk jobs

6. Retired

7. Bad health

This list is not exhaustive.

WHAT IS A WILL?

A will is the written document through which you declare your intentions for what should happen after you die and how your estate is to be divided. A will only takes effect upon your death, and can be altered or even revoked in its entirety while you are alive.

When loved ones die, you are faced with both the grief from the loss and the task of dealing with the affairs of the deceased. This can be a heavy burden to bear. If the roles were reversed and you died, having a will could ease this burden as your loved ones would be informed on how you want your affairs to be handled — from your funeral arrangements and expenses, to the division of your property.

In any family, the dynamics of the relationships you have with each member varies. After you die, only your will can ensure that your assets are distributed in the manner that reflects these varying relationships.

The executors and trustees you appoint to manage your estate should be honest and trustworthy persons, who will distribute your assets in accordance with your wishes and the law.

Without a will, your assets are distributed based on the Intestate Estates Property Charges Act, which details a list of relatives in a specific order with varying levels of entitlement to the estate.

It is quite easy for there to be intense disagreement amongst surviving family members; if the estate is distributed based on this list — a list which does not mention every single relative and completely excludes friends and loved ones who may not be blood relatives.

Not having a will could result in deserving loved ones being left without anything.

ADDITIONAL MATTERS A

Your will may also include:

• How your bank accounts are to be shared

• Setting up a trust to ensure your children can complete their education

• Conditional clauses which limit a beneficiary to receiving a gift upon a certain event taking place. For example — reaching the age of 25 or finishing University.

• Who is entitled to the rest of your estate not mentioned in the will (residuary beneficiary).

ENSURING YOUR WILL IS VALID

For a will to be valid, it must be written in a particular form, following certain legal requirements set out in the Wills Act and by various decisions of the court. If these requirements are not complied with, the will cannot be used.

Some of these requirements relate to:

• Mental capacity of the Testator (person making the will)

• Description of the Testator

• Signing of the will by the Testator or by someone else on his or her behalf

• Position of the signature

• How to and who should witness the document.

The content of the will also has some legal limitations. Although in theory you have the freedom to distribute your assets in any way you see fit, The Inheritance (Provision for Family and Dependants) Act allows for certain interested persons to apply to benefit from your estate if they can establish that they are entitled.

To get the best guidance on making your will, it is recommended that you approach an attorney-at-law. The attorney will be able to draft the document to contain all the necessary clauses to protect your intentions and comply with all the legal requirements.

No one can stay young forever; making a will is the only way to protect yourself and even your loved ones from beyond the grave.

Antwan Cotterell is an Associate at Myers, Fletcher & Gordon in the Property Department. He can be contacted via Antwan. cotterell@mfg.com.jm or myersfletcher.com . This article is for informational purposes only and does not constitute legal advice.


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