On wills, ownership and division of property

Dear Mrs Macaulay,

My uncle made a will (properly executed by an attorney) in 1994. He subsequently executed a trust document (properly executed by an attorney) in 1996. Within the trust document is a pour-over will. He is deceased as of 2020.

My question is: (a) Is the pour- over will recognized as a valid document for property conveyance in Jamaica?

b. If not so recognised, being contained in the trust document, would the 1994 will be recognised as a valid document for property conveyance in Jamaica even though there was a subsequent trust document – which is not recognised as valid in Jamaica?

I am a 70 year old Jamaican and my uncle, a Jamaican, migrated to the USA in the early 1980s. I was left as the executor of his 1994 will, the 1996 pour-over will and also as the successor trustee of his trust. His wife predeceased him and neither he nor his wife had any children. The property in Jamaica – to which he held title – is to be divided up for the children of my uncle's parents and/or their successors. I need to be able to give ownership of the subdivided property to the heirs of his father/ mother as was decided by the family prior to his death at age 89.

It is clear to me that I cannot answer all that you would need to know in order to move ahead and with the legal processes necessary to enable you to be legally registered on transmission of the title or titles of all the estate's real property or properties, so that you can then legally transfer the parcels of land due to each of the beneficiaries of the estate.

I have not had sight of the 1994 will, the trust deed made in 1996, within which you assert is a pour-over will. I cannot assess whether you are correct in your assertions and identifications of those documents. Nor can I form an opinion about the contents and their validity or invalidity in law in Jamaica.

Generally the trust must be in existence before the will is made and then if a testamentary trust is created in the will, this often functions as a pour over will which places the property/properties dealt with in the will within the earlier established trust. I can say this, that the term pour over will is not often used in Jamaica, where the simple and more straightforward method of creating a testamentary trust in one's will is more commonly used, with a named trustee appointed, especially for gifts to very young children for the safety of the bequest until the child's majority or any later age when the trust is stated to end.

You really need to take the documents in your possession to a lawyer experienced in estate law and practice and have that person assist you to interpret them and the law which must be applied and ensure that your distribution of the bequests is made properly and according to law and that you obtain your entitlements as executor and trustee. You really must do this because there are several matters which have to be examined for an estate lawyer to draw up a revocable trust deed which is recognised as a living trust and so it can be changed during the grantor's lifetime. They become operative after their execution during the grantor's life, while a will only comes into operation on the death of the testator. When you consult a lawyer, she or he must first ascertain the issue of the validity of the will and of the trust deed and if they are, which of them takes precedence over the other if they are in conflict, as they were made two years apart.

I am not in a position to do any of this and answer your questions and it would not be sensible of me to attempt to do so in such a vacuum. I write this column to assist people to understand how the law applies to problems they have and advise them to obtain the services of a lawyer to whom they would be able to relate their circumstances in greater detail. In your situation, I really would need to read and consider the status of the will and the trust deed which you say has a pour-over will in it and apply the applicable law to them in order to give you sensible answers to your questions. I therefore cannot do so and do not wish to mislead you or any other writer/reader in any way. Your situation is not a simple application for the probate of a will; it involves a serious examination of the two documents and the related law applicable to them.

So I suggest very strongly that you should make every effort to find and retain an experienced estate legal practitioner who can assist you after your complete disclosure to her or him.

I wish you all the very best and success and assure you that I have pointed you in the right direction.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.

Margarette MACAULAY

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