Do I need to have a Jamaican will to dispose of J'can assets?

One reader asked:

If a person died leaving behind a will made in the United Kingdom, but no will in Jamaica, is that will recognised under Jamaican law?

Can the executors wrap up his finances in Jamaica or can the next of kin apply to do this?

Answer:

The answers to the questions are quite simple. First, a will which was made in the United Kingdom (UK) and admitted to probate by the courts there, will be recognised under Jamaican law, but there is Jamaican legislation and a process to be followed. Second, the same executors who applied for probate in the UK are entitled to administer the deceased person's estate in Jamaica.

Let us now consider what this really means. Many persons own property in different countries. In Jamaica, for example, we often encounter persons who spent their working lives in England before purchasing their retirement homes in Jamaica. Quite often, they maintain assets in England and have only one will which disposes of all their assets.

If we consider the reader's question, the will made in England may have disposed of all property in both England and in Jamaica, even the Jamaican retirement home. The executor(s) will take charge and apply for probate in England and they might have gone beyond merely applying for probate. It is possible that the distribution of the assets in that country may be completed before any attempt is made to treat with the Jamaican assets.

As long as probate was granted in England, the executor(s) may make an application in the Jamaican Supreme Court to reseal the grant of probate which was obtained in the court in England. The Probates (Re-sealing) Act makes provision for this step to be taken. Here are some points to note in relation to the act.

1 It is another example of cooperation among countries of the Commonwealth, as it applies only to courts within commonwealth countries or within countries in which the British court has jurisdiction.

2 Both grants of probate (where the deceased left behind a will) and letters of administration (where the deceased died intestate) can be resealed.

3 In Jamaica, only the Supreme Court has authority to reseal a grant of probate or letters of administration granted in another commonwealth court.

4 The executors(s) will be required to file a copy of the probate or letters of administration which was granted in England in the Jamaican Supreme Court for it to be resealed.

5 Before resealing the grant of probate or letters of administration, the Supreme Court will ensure that estate duty has been paid (in the case of probate) or security is provided for estate duty to be paid (in the case of letters of administration) and that security is also provided for the payment of debts to creditors.

6 When the grant of probate or letters of administration made in the court in England has been re-sealed in the Jamaican Supreme Court, it will have the same effect as if it had been originally granted in the Jamaican Supreme Court, and the executors will have the power to complete the winding up of the estate.

There are additional rules of the court which govern the making of the application to reseal, so readers would be well advised to retain attorneys-at-law to guide them through this process.

Sherry-Ann McGregor is a partner and mediator in the firm Nunes, Scholefield, DeLeon & Co. Please send your comments and questions to lawsofeve@yahoo.com or lifestyle@gleanerjm.com.