Beneficiaries often inquire about their rights concerning their entitlement under a will and whether the executor must disclose the deceased’s last will and testament. Heirs usually want to know how much money they will receive, or desire to identify their interest in an estate. In some cases, they may want information about the assets and liabilities of the estate.

Most of these enquiries arise from concerns about how an estate is being administered. It is human nature to be inquisitive when information is withheld. Common complaints include:

1. The executor failed to provide the beneficiary with a copy of the will, and as a result, the beneficiary does not know his/her entitlement; and

2. The beneficiary is not being provided with information about the administration of the estate and the asset and liability position of the estate.

The executor’s fiduciary obligation to beneficiaries

Beneficiaries of estates have certain rights that are protected by law.

When entering into a discussion of the rights of beneficiaries in estates, a useful starting point is the nature of the relationship between the beneficiaries and the executor. An executor stands in a fiduciary relationship with all beneficiaries of the estate. ‘Fiduciary’ means a relationship of trust. This relationship is central to the rights of beneficiaries and the obligations of executors in estates. The executor has been entrusted with the estate’s assets and the power to administer the estate to benefit the estate’s beneficiaries. Therefore, the executor must discharge his/her duties with due care and loyalty to the beneficiaries.

Identifying a beneficiary’s interest in an estate

A beneficiary should be promptly informed of his/her entitlement under a will, or if there is no will, of their entitlement under the laws of intestacy, which governs the distribution of an estate in the absence of a will.

When a beneficiary has not been adequately informed of their entitlement, the law provides beneficiaries with certain rights to access information relating to their entitlement. Those rights include the right to receive a copy of the will. Once a beneficiary receives a copy of the will, he/she will be able to identify his/her interest in the estate. If the beneficiary cannot do so due to the complexity of the document, he/she should seek the assistance of an experienced estate attorney.

Seeking information about the nature of the estate’s assets and liabilities

A beneficiary’s right to information about the operation of an estate is historically steeped in English law, which has continued to inform Jamaican law. For many years, it has been an accepted legal principle that estate documents ‘belong’ to the beneficiaries and are, in a sense, the beneficiaries’ property. Access to those documents is an entitlement that the executors should not deny.

For a beneficiary to effectively monitor the administration of estate property, the beneficiary needs information regarding the performance of the executor’s duties and powers. To this end, the law has imposed on executors and trustees a duty to account to beneficiaries. However, the nature of the beneficiary’s interest can dictate the extent of information they are entitled to.

A beneficiary that holds an interest in a specific asset (for instance, a car, property or a bank account) has a right to access information concerning that particular asset, but generally nothing more. For example, a beneficiary who receives a specific gift of a car under a will is entitled to access information related to the vehicle (such as the registration papers, etc). They are not, strictly speaking, authorised to access information about the other assets of the estate unless there are exceptional circumstances.

The rights of a beneficiary holding a residual or remainder interest in an estate are much broader. As a residuary beneficiary of an estate, the entitlement to access to information extends to the ability to access information relating to the management and administration of the estate in its entirety.

A beneficiary entitled to an interest in remainder in an estate has a right to access all information about the estate and has a right to see estate documents as this is information about the beneficiary’s property. As every transaction occurring in the estate will ultimately affect that beneficiary’s interest, they are entitled to a complete estate accounting. If information is withheld, the beneficiary can approach the court to compel the executor to provide the relevant information.

Further rights of beneficiaries

The above summaries are not exhaustive. Beneficiaries have further rights in estates, including:

1. The right to be informed of the expected date of distribution and any delay that may be occasioned;

2. Where the beneficiaries are due to receive a legacy, to receive that legacy within 12 months of the deceased’s death, or if paid outside that period, to be paid their legacy together with interest as prescribed by the legislation; and

3. To be advised of any litigation against the estate that may affect their entitlement under the will or intestacy.

You must take steps to find out about your entitlements in an estate if you are a likely beneficiary.

Recommendations

Where you think that an executor is being deceptive, you may:

1. Seek mediation; or

2. Seek independent legal advice to protect your interests against this type of potential harm.

Venice Williams-Gordon is a justice of the peace/partner/attorney-at-law at Lewis, Smith, Williams & Co. Email: vwilliams@lswlegal.com