Mon | May 29, 2017

Reform of the Administrator-General Act - A giant step in the right direction

Published:Sunday | June 14, 2015 | 6:00 AM
Justice Minister Mark Golding
Shena Stubbs-Gibson
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The law pertaining to 'dead lef' in Jamaica was recently given a 'shot in the arm' with the passage of the Administrator General's (Amendment) Bill in both houses of Parliament.

Often you come across Jamaicans who mention that a parent or grandparent died years ago leaving property which, to the date, remained undistributed, albeit the necessary documentation having been lodged with the Administrator General Department shortly after death.

The delay in such cases often means that the family members of the deceased persons are unable to obtain property titles in their names and much-needed money is stuck in 'purgatory' at various financial institutions, among various other setbacks.

 

Multigenerational estates

 

Over the years, the administrator general office has been severely hampered in the distribution of the assets of numerous deceased persons (primary estates), often due to the death of beneficiaries themselves without leaving wills. In such cases, the primary estates cannot be distributed until the administrator general has obtained a further grant of representation in the estates of the deceased beneficiaries, and this may take a while. While awaiting the additional grant, another set of beneficiaries could have died and the cycle continues.

The new Section 53C of the Act provides a mechanism to deal with these 'multigenerational' estates that will enable the administrator general to distribute the assets of the primary estates even though grants of representations have not been made in the 'succeeding' estates.

In his address to the Upper House of Parliament on the bill, Justice Minister Mark Golding estimated that some 2,100 of the backlog of 2,800 estates at the Office of the Administrator General related to such 'generational cases.' The proposed amendment, therefore, will tremendously impact the backlog at that office and, by extension, the lives of thousands of Jamaicans.

 

Where minors are involved

 

Minor descendants of a deceased person comprise an especially vulnerable group with the death of a parent intestate (without leaving a will). This is especially the case where the deceased person was the primary breadwinner.

Though the deceased person may have left assets behind, minor beneficiaries in need may suffer great financial hardship while waiting years for the assets of the estate of the deceased parent to be distributed. Oftentimes, by the time the estate is administered, minor beneficiaries have emerged into adulthood, scathed, and much the worse for the experience. A new Section 53B of the Act authorises the administrator general, in such instances, to proceed to administer the estate without having to obtain a grant of administration from the court. This is a very welcome amendment.

There are other forward-thinking provisions of the act, such as Clause 19 which proposes a raft of significant amendments to other enactments which will assist in the streamlining and enhancement of the laws of succession in Jamaica. The amendments proposed include:

- Amendment of the Intestate Estates and Property Charges Act to include a definition of the term 'child', which will make it clear that the term includes foetuses in womb at the time of death of a parent intestate, as well as adopted children. This is commendable as it will help to clarify the legal status and, by extension, entitlements of such children.

- Amendment of the Intestate Estates and Property Charges Act by the insertion of a definition of 'spouse'. The insertion, among other things, makes it clear that only one person shall be regarded as the spouse of the deceased person and identified as the 'surviving spouse'. This will guard against those common-law-union types of cases when more than one woman emerges after death claiming to have cohabited with the deceased as 'wife' prior to death. Jamaican men have a lot of love to go around, it seems, and I am certain many of us have heard of disputes arising upon the death of a particular 'gentleman,' between his 'surviving wives'. This provision allows the contenders to apply to the court for an order that she is the 'wife', not just a 'matey.' The provision also applies to men making similar claims in respect of a deceased woman

- Amendment of the Probate of Deeds Act and Registration of Titles Act to remove the requirement for a notary public from a non-Commonwealth country to provide a government certificate verifying the validity of his/her appointment. This requirement is often quite frustrating to affected clients who have to incur inconvenience, expense and, at times, a wait period, to obtain such certificates.

- Amendment of the Wills Act. Of several important amendments to this act, the most notable is the amendment so that it will no longer be the law that persons who witness a will are barred from receiving a gift in the said will. A testator (person writing a will) not knowing the law on this area may have asked a close family member or friend to witness his/her will, having also given a gift to that person in the said will. Under the existing laws, the gift to the person witnessing the will would become null and void upon their assumption of the role of witness of the testator's signature. With the amendment proposed, however, an affected witness could apply to the court for an order for the gift to him/her to be approved.

The act represents a tremendous overhaul of the laws of succession in Jamaica, and the justice minister and his team are to be commended for the effort.

- Shena Stubbs is an attorney-at-law and legal commentator.

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