Nobody likes the thought of death and so encouraging clients to make a Will can be difficult. In fact, a poll conducted by our probate lawyers online suggested that 95% of Jamaicans do not have a Will which means that most of us are leaving it up to the government to administer our estate. 

A Will is a document in which a person declares what he wants to be done with his property at the time of his death. Whenever a Will is made, it has no effect until the person who wrote it, known as the testator, dies. The testator can also revoke a Will at any time prior to her death.

Now Here is Why You Need One 

1. You get to decide how your estate will be divided

If you die without a Will (intestate), then you have no say in who gets what after you die. Your estate will be distributed in accordance with the laws of intestacy. The Intestate Estate and Property Charges Act has a table of distribution which it is safe to say, favours only spouses, children and other close blood relatives. Therefore if one has any intention of having a friend, a distant relative or a charity benefit from his estate, without a Will such wishes will never be materialized.

• You decide who will take care of your minor children.

Having a Will in place will also allow you to make an informed decision as to which relative should take care of your minor children.  Where there is no Will, the court may take it upon itself to appoint a guardian among your family members or one of your family members may apply for guardianship. However, whosoever the court decides on or whosoever decide to apply for guardianship may not be who you would have wanted.

•  To avoid a lengthy probate process.

Contrary to common belief, that probating a will can take a long time, the Administrator General’s Department that is responsible for probating a Will is overburden by the number of assets it has to deal with owing to the number of people who die intestate. Having a Will, however, speeds up the probate process and informs the court how you’d like your estate divided.

• You decide who will wind up the affairs of your estate. 

When you make a will, you get to decide who will wind up your estate by appointing executors. Because executors play the biggest role in the administration of your estate, you’ll want to be sure to appoint someone who is honest, trustworthy, and organized (which may or may not always be a family member). 

How Do I Get a Will

When you are ready to prepare a will, compile a list of your assets and debts. Be sure to include the contents of safe deposit boxes, items of sentimental value, family heirlooms and other assets that you wish to transfer to a particular person or entity. You should also compile a list of all of those who you wish to benefit from your will.

You must identify yourself as the testator or testatrix (female). You must appoint at least two executors who you will list in your will and who will tell where you are placing your will and who will have the responsibility of probating your Will.

You must also identify two witnesses person who you want to witness the will. You must note though not to allow anyone who will benefit under the will to be a witness as the Wills Act provides that the gift to any witnesses or their spouse will be void.  

It is also important that you adhere to the formalities required under the Section 6 of the Wills Act because making an invalid may have no effect at all. In that, your assets will fall under the rules of intestacy (dying without a will) and it is those rules that will determine who gets what, which of course may not be coherent with your wishes.

The formalities under section 6 of the Act requires that the Will is made in writing, signed by the testator or someone else on the testator’s instruction, in the presence of the testator and witness by two witnesses present at the same time.

If after you created a Will, you get married, you will need to make another because the wills act provides that any subsequent marriage of the testator will revoke the Will.

You must make sure to include all your assets in your Will. Therefore, it is highly recommended that you enlist the help of a probate lawyer. The assets that are not included in the Will fall on intestacy if there are no residuary clause.