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When preparing a will ...

Published:Monday | May 28, 2012 | 12:00 AM
McGregor

In past articles, I have recommended that readers obtain the advice of an attorney-at-law when preparing their wills. The attorney should ensure that the wishes of the testator are properly recorded and enforceable, and to prevent the clauses of the will from resulting in unintended consequences.

A question posed by a reader has encouraged me to reinforce the need to obtain proper legal advice when preparing a will.

The reader asked:

If the deceased leaves a will stating that "all his worldly goods are to be inherited by his wife" and then specifies that "upon her death that these goods are to be inherited by the children", should/can the wife make a will? And if so, could it be contrary to the wishes as stated in the original will of the husband?

Answer: Words similar to those which set out the gift to the wife can be found in most straight-forward wills, as they would create an absolute gift to the wife. Other words, such as "I bequeath my 2006 motor vehicle to my son" or "I devise my townhouse to my wife" would have the same effect of giving the testator's whole interest in the motor vehicle and the property to his son and wife, respectively.

Things become complicated when the testator intends for different persons to benefit from the same property at different times. That is to say, care needs to be taken to be certain of what the testator intended when he included that clause. Did he want his wife to enjoy the 'goods' during her lifetime and for the children to enjoy those same 'goods' after she passed away? Or, did the testator want his wife to have the freedom to do whatever she liked with the goods while she was alive, and leave whatever remained to the children? Who are "the children"? This is not clear.

From a lawyer's standpoint, the question would be asked in this way, "What should the clause say? What words of limitation would need to be inserted in the clause to achieve the result which the testator intended?"

The Jamaican court is likely to interpret the clause to mean that the wife has received a life interest in the goods and, after she dies, the goods should automatically go to the children. This means that the wife will never own the goods, so she will not be able to count them among her assets or dispose of them under her will. However, she will have the obligation to pay for the upkeep if the goods include a house.

A testator who considers leaving a life interest in property which requires maintenance should also consider leaving cash or some form of income-generating property to be used to maintain that property. Otherwise, the person who holds the life interest may not have income of her own from which to maintain the property, and this could result in the property being sold.

The short answer to the reader's question is that the wife is entitled to a life interest in the goods, but will not be able to dispose of them under her will because, when she dies, the life interest will come to an end and the goods will automatically go to "the children".

Sherry-Ann McGregor, partner and mediator, Nunes, Scholefield, DeLeon & Co, attorneys-at-law and notaries public, 6A Holborn Road, Kingston 10. Send feedback and questions to lawsofeve@yahoo.com or lifestyle@gleanerjm.com.