Recently, the press in Jamaica has placed the spotlight on the volume of estates being handled by the Administrator General’s Department.

In this three-part series, Our Today will look at some of the dimensions of this area and its effect.

Firstly, we look to explore the ramifications of not having a will versus having a valid one in place. 

Secondly, we will examine the order of priority and discuss who stands to benefit from the estate when the deceased leaves no will. Finally, in the third part, we will deal with the situations under which the Administrator General handles the estate of a deceased person and that administrative process. 

What does it mean to die testate versus intestate?

This distinction is paramount to this concept. A deceased person is said to die ‘testate’ when they pass leaving a valid will. A will need not take a specific form in relation to the wording but the law requires certain elements for it to be held as a valid and binding document. The essential four elements are as follows:

1. The testator (that is, the person making the will) has to be a legal adult at the time the will was made.
2. The will MUST be in writing.
3. The testator has to sign at the foot or end of the will. Another person may be permitted to sign the will, but it must be under the instruction of the testator.
4. The testator or their representative must sign the will in the presence of at least two witnesses, who are present at the same time.

There are plenty of precedents dealing with the adherence to these requirements and how strictly they are to be followed if the will is to be valid. In simple terms, the person making the will must be an adult, he must write the will down, he must sign it at the end and the two witnesses must be present at the same time when he does. 

The benefit of having a will is that an individual gets to decide how his assets are distributed and to whom. A person’s will can be changed as many times as they wish up until he or she dies, as long as the most recent will is executed in keeping with the requirements. So, if the testator’s desire changes, his will may be changed to reflect same.

A person is said to die ‘intestate’ when they die without leaving a valid will. 

In this situation, the law governing that estate is the Estates (Intestate) Property Charges Act. The Act dictates how the assets will be distributed. In this case, there is no thought given to the wishes of the testator or family members who may not fall on the list of beneficiaries in the Act. 

No flexibility is available in this process. The list of beneficiaries in the Act is not subject to change and is the only option when distributing the assets. 

There is an inherent freedom in writing your own will, as your assets will be given to whom you wish to enjoy them after you die. Intestacy leaves your assets at the mercy of the law and makes no allowancesfor personal relationships and desires. 

A valid will which can be contested . It is  the most effective way to ensure that the testator’s estate is handled according to their wishes.