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Oran Hall | Why a will has to be probated

Published:Saturday | October 16, 2021 | 12:05 AM

QUESTION: My Father died in 2015 and left a will. What I cannot understand is, he and his wife went to England in 1960 where they both worked before they purchased their houses in Jamaica. They were young people when they left in their early 20s...

QUESTION: My Father died in 2015 and left a will. What I cannot understand is, he and his wife went to England in 1960 where they both worked before they purchased their houses in Jamaica. They were young people when they left in their early 20s and 30s. They came back home in their 50s. During their time here, they paid every tax on the property. They are now both deceased. My problem is why the will had to be probated since they didn’t work here to buy their houses, and everything about the properties was up-to-date. What I would like to know is if the estate couldn’t sell without probate. It took five years for the will to be probated.

— I. Lawrence-Reid

FINANCIAL ADVISER: Probating a will is a legal process through which it is tested by the court to prove it is valid. Under Jamaican law, no property of the deceased can be sold or transferred to the beneficiaries without a grant of probate.

In cases in which a person dies without making a valid will, the court has to grant letters of administration before property can be sold or transferred.

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 executor or executrix is the personal representative of the decedent and is responsible for carrying out the wishes of the deceased.

The law requires that people 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.

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.

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, certificates which evidence ownership of the assets, and a certified copy of the death certificate 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.

Although the process for obtaining probate may not be as short as desired, individuals can help to reduce the time it takes to settle their estates by putting their house in order while they are alive by ensuring their assets are clearly identifiable and documented, ownership is properly established, assets are secure, and at least one person has access to them and the relevant documents.

Even a will made abroad that conforms to the Wills Act has to be probated in Jamaica if the property to be distributed is located here. Where money was earned to purchase assets in Jamaica is neither here nor there.

Serious family squabbles develop even when there is a valid will which goes through the process of probate.

Can you imagine what would happen if the property of a deceased person could be sold and transferred without a legal process to prove that the will is valid and to confirm the authority of the executor or executrix to carry out the wishes of the deceased?

Oran A. Hall, author of Understanding Investments and principal author of The Handbook of Personal Financial Planning, offers personal financial planning advice and counsel. Email finviser.jm@gmail.com