ADVISORY COLUMN: Requirements of a valid will

Oran A. Hall, Gleaner Writer

QUESTION: For a will to be valid in Jamaica, does it have to be registered?

- Barrington

PFA: In Jamaica, we speak of recording rather than registering a will, which should state clearly who the beneficiaries are and what is being bequeathed to each. It does not have to be recorded to be valid.

To record a will, it is presented to the Registrar General's Department to be given its unique identification and filed. The cost of recording is determined by how many words it contains.

There are good reasons for recording a will. It offers protection against fraud in a case where any attempt is made to present a purported will. It is a secure way to store a will as opposed to risk having it at home where it can be mislaid or destroyed. A will that cannot be located is considered to be a revoked will.

It is possible to change a will that has been recorded, by codicil, for example. As in any other case, the codicil has to meet the same formalities as the will as both are considered as one document. It is best to write a new will if the circumstances of the testator or testatrix have changed materially.

Recording a will is not a means of ensuring that it cannot be invalidated. Marriage after the drafting of a valid will, for example, invalidates it. If adequate provision is not made in the will for a person who had been wholly dependent on the testator, or if that dependent has been excluded, the courts can be asked to vary the will to take that beneficiary's position into consideration.

It is prudent, therefore, for the testator to be satisfied that the will to be recorded is his/her last will.

For a will to be valid in Jamaica, it must meet the following requirements:

The testator - testatrix, if a woman - must be at least 18, the age of majority, and of sound mind.

The will must be in writing, that is, handwritten or typed.

It must be signed by the testator in the presence of two witnesses who must be jointly present, but who are not required to see the contents of the will.

The will should also be made without "undue influence" such as a child intimidating or withholding care from an elderly parent to secure a more favourable disposition.

Executor's agreement

In addition to the above necessary provisions, there are several other provisions and clauses which make a will complete.

An executor or executrix should be named to carry out the wishes of the testator as stated in the will and may be a witness to it if he/she is not a beneficiary. It is best to have the executor's agreement before making the appointment. The role of executor may be played by a corporate body, particularly if the will is complicated and the beneficiaries are likely to be troublesome. Several trust companies, for example, carry out that role.

It is useful to state that a particular will is the testator's "last will and testament", that it revokes all previous wills, and for it to be dated. If not done, serious complications can arise if there is more than one will, especially if their contents are not identical. In such a case, both wills will be read as one.

Wills also include a clause directing the executor to pay funeral expenses, debts, taxes, and testamentary expenses.

It is useful to include a residual clause in a will to provide for the disposition of assets not named in it, or to capture any gift that may create a state of partial intestacy due to it being void. A gift becomes void, for example, if an individual who is named as a beneficiary also signs as a witness.

A clause may be included to provide for the guardianship and care of children who are minors. Other clauses that may prove helpful are those stating the compensation of the executor and how assets are to be administered and invested.

Although it is not necessary to record a will, there are good reasons why it may be beneficial.

Oran A. Hall, a member of the Caribbean Financial Planning Association and principal author of "The Handbook of Personal Financial Planning", offers free counsel and advice on personal financial planning. Email: finviser.jm@gmail.com