We have been drudging through the Covid-19 pandemic for what seems like an eternity. A few months ago, things were looking more positive but the overflowing hospitals and spiralling positivity rate in the current third wave is a grim reminder of how dangerous and chaotic the pandemic can be. Now is as good a time as any to contemplate making or updating your Last Will and Testament.
In another article published in this newspaper on May 22, 2019, we outlined some key stages of life when it’s recommended that you create [or update] a Will, such as:
- After marriage;
- Acquiring Assets;
- Becoming a Parent;
- Taking on a High Risk Occupation;
- Retiring; and
- Being diagnosed with Poor Health
No one could have predicted that two years later a “pandemic” could be added to that list. The main purpose for creating or updating your Will is to ensure your assets are dealt with in the manner you intended. During the pandemic, a Will, especially a well-drafted one, can also help to provide a little order and direction after the death of a loved especially during these chaotic times.
What Should I Put in My Will?
Save for a few exceptions, you have the power to distribute your assets in any way you deem fit. A Will is your last statement to your family and the world; a written document in which you instruct what should happen after you die. A standard Will should, amongst other things, include:
- The necessary details to identify yourself (the testator);
- The executor(s);
- A clear description of the gifts/assets and the beneficiaries; and
- A residuary clause.
Choosing Your Executors
It is important to choose your Executors carefully as in the event of your death, they will have power to deal with your assets as if they had stepped in your shoes. Executors have great power but also have great responsibility because as a “fiduciary,” they should never act for their own interests but rather in the interest of your estate. Therefore, an Executor should be someone trustworthy and honest to ensure that that your estate is properly administered. It might also be practical to choose someone young enough who will more than likely be alive after your death. You should also ensure that the person you have appointed as Executor is willing to accept the role before you finalize your Will. If there is only one Executor and he or she is unwilling to act after your death, or have themselves passed away, it creates an avoidable complication for the beneficiaries that could cost them time and money.
Description of the Gifts/Assets & Beneficiaries
The Will needs to clearly describe the gifts and to whom they should go, if not, there is a risk that the gift will not be valid and create difficulties in distributing it as you intended. For example, if your Will leaves “a motor car” for your daughter in circumstances where you have more than one motor car and/or more than one daughter. If no additional details are given, such a bequest would not clearly identify the asset or the beneficiary and administering such an estate becomes very complicated and challenging.
The residuary clause is a “catch all” clause where the person named as the residuary beneficiary receives all the assets not specifically mentioned in the Will (referred to as “the residue”). If this person is not properly identified, the residue may have to be divided under the laws of intestacy instead of how you intended.
More complex Wills may also include:
- Special provisions for young children including the appointing of a guardian,
- Setting up a trust to ensure your children can complete their education,
- Conditional gifts which are only given on the occurrence of a specific event.
Reasons to Update your Will
Updating your Will is just as important as having one in the first place, particularly if you made your Will whilst you were young. A few of the reasons to update are:
- If you have acquired additional assets;
- If you sold one of your properties. That property no longer forms part of the estate;
- If a beneficiary under your Will dies. It may be prudent to update the Will and replace them with someone who is alive. If you fail to do so, the gift will lapse and form part of the residue unless the beneficiary who died left a child who is alive at the time of your death. If there was no child and no residuary clause in the Will, the gift would be divided under the laws of intestacy;
- If one of the beneficiaries commits a felony. This may result in a partial or total intestacy;
- Where a gift was made for an illegal purpose. Public policy dictates that such a gift should fail; and
- If it becomes apparent that your named executor is incapable or unwilling to act in the event of your death.
When we first heard about Covid-19 about 2 years ago, most of us never thought it would even reach Jamaica. Here we are in 2021 still in the thick of it. Have you made your Will yet?
Antwan Cotterell is an Associate at Myers, Fletcher & Gordon in the Property Department. He can be contacted via Antwan.Cotterell@mfg.com.jm or myersfletcher.com. This article is for informational purposes only and does not constitute legal advice.