Wed | Jul 8, 2020

Oran Hall | Executing a will in Jamaica

Published:Sunday | June 7, 2020 | 12:24 AM

ADVISORY COLUMN: PERSONAL FINANCIAL ADVISER

QUESTION: My mother and I are researching how we can go about getting a will executed for her in Jamaica. Would you be able to assist with this? Any information would be greatly appreciated.

– Ian

FINANCIAL ADVISER: The Wills Act sets out some legal conditions that must be met by the testator or testatrix – the person making the will – to ensure that a will is accepted as valid by the court and thus allow for the intention of the testator or testatrix to be carried out.

The law requires that persons have the legal and mental capacity to make a will. This means that they must be over the age of 18 years and be of sound mind. They must make it free from fraud, force, or duress. A will must be in writing, whether handwritten, typewritten, or computer generated.

Additionally, it should be signed at the foot or end by the testator or testatrix or by some other person in his or her presence and by his or her direction. The signature should be made or acknowledged by the testator or testatrix in the presence of two or more witnesses present at the same time while the testator or testatrix is signing, and such witnesses should attest and subscribe the will in the presence of the testator or testatrix though not necessarily in each other’s presence.

The Wills Act also stipulates that any gift made in a will to a person who attests to the execution of the will, that is, witnesses the will, or to the spouse of the witness, is null and void. It also provides for the testator or testatrix to affix his or her signature near to any alteration to the will and for the witnesses to do the same as witnesses. The signature of the testator or testatrix or the witnesses may also be made at the foot or the end or opposite to a memorandum referring to such alteration written at the end or some other part of the will. The names and addresses of the witnesses should be legible and the will should be dated.

Clauses and codicils

The basic clauses of a will are the identification of the testator or testatrix; revocation of all former wills or codicils – amendments to a will; appointment of an executor or executrix who distributes the assets of the deceased according to instructions contained in the will and is the only person or institution authorised to apply to the court for probate of the will; instruction to pay all debts, funeral, and testamentary expenses; and identification of beneficiaries to receive specific assets and the residue of the estate.

A will may also include other clauses addressing such issues as survivorship, investment discretion, life interest in a specific asset, and appointment of guardians if there are children who are minors.

The will has to be admitted to probate in the courts of Jamaica for which it would be necessary to retain an attorney-at-law in Jamaica. The executor or executrix would need to deliver the original will, titles, and certificates which evidence ownership of the assets to the attorney-at-law, who would then give other necessary documents to the executor or executrix to be signed, and thereafter secure the grant of probate from the court.

The documents would then be sent to the Stamp Office for the assessment and payment of transfer tax on death, which is 1.5 per cent of the value of the estate in excess of the threshold of $10 million at the time of the death of the testator. No stamp duty is payable, but interest at the rate of six per cent per annum is charged on transfer tax not paid after a one-year grace period after the death of the testator. The instrument of transfer for real property, such as land, should be sent to the Titles Office for it to be transferred to the beneficiaries.

Overseas wills

A will made abroad that conforms to the Wills Act is valid in Jamaica, and it has to be probated here if the property to be distributed is located here. If it is made in a Commonwealth country relating only to property in Jamaica, it can be probated as if it was executed in Jamaica. If it covers property in Jamaica and another Commonwealth country, it can be probated in either country and resealed in the other. An application to the Supreme Court of Jamaica for resealing should be accompanied by a certified copy of the probate and will.

An alternative is to make a will in respect of the property in each country. Each should say that the other, which covers assets in the other jurisdiction, is binding. It should be clear that the assets in each will are separate from those in the other. There should be no overlapping. The words 'last will and testament' and 'I revoke all former wills' should be omitted so as not to make the other will of no effect.

Property in the United States requires a separate will and should be probated there because the US is a different jurisdiction that is outside of the Commonwealth.

Ultimately, the executor, whether a person or a corporate entity, plays a critical role in carrying out the wishes of the testator. An executor or executrix who resides abroad does not have to come to Jamaica to carry out his functions but can appoint an agent by power of attorney to do so. Any person who is selected to act as the agent of the executor should be competent, have time to carry out the various functions, and be trustworthy.

Oran A. Hall, principal author of The Handbook of Personal Financial Planning, offers personal financial planning advice and counsel.

finviser.jm@gmail.com