03.02.20

When Your Will Isn’t Your Way

When Your Will Isn’t Your Way

You do not always get what you want: true of life, and sometimes, true of death.

Unlike some other legal systems, Jamaican law recognises the freedom of individuals to dispose of their assets by will after death in whatever manner they wish.  However, individuals should also be aware that the Inheritance (Provision for Family and Dependants) Act (“the Act”) potentially limits the full realization of that freedom. Advice on the considerations which should be borne in mind in disposing of assets in a reasonable manner is therefore valuable to any testator who desires to see his/her testamentary wishes fulfilled.

The Act works in a manner which some may find offensive.  An individual may make a will, and for whatever reason, they may choose to exclude a wife, ex-wife, husband, ex-husband, parent or child from inheriting their assets.  The excluded relative may then apply to the court for an order for financial provision from the estate, once they are able to satisfy the conditions required by the Act for the class of relative in which they fall.  The application must be made within six months of the date on which a grant of probate or administration is made in relation to the estate.  However, the court may extend this time period in some circumstances.   The financial provision ultimately ordered by the court may be the transfer of property which may have been intended for someone else, a payment of a lump sum from the estate, periodical payments from the estate, and even the establishment of a trust fund for the benefit of two or more applicants.

In a 2017 case from the Supreme Court in the United Kingdom (UK), Ilott v Mitson and others [2017] UKSC 17, the applicant was an adult child of the deceased.  In 1978, when she was 17, she secretly left her mother’s home to live with her boyfriend.  Her mother did not approve.  The mother and daughter therefore remained estranged for 26 years until the mother died in 2004 at the age of 70.  The mother left the majority of her estate (worth about £486,000) to charities.  She made no provision for her daughter in her will, stating that she felt no moral or financial obligation towards her estranged daughter.  She also instructed her executors to resist any claim which her daughter made.  The court eventually awarded the daughter £50,000 pounds from the estate.

Interestingly, three of the seven judges in the appeal expressed dissatisfaction that the UK Act provided no guidance in relation to factors to be considered in deciding whether an adult child is deserving or undeserving of reasonable maintenance.  The UK Act is quite similar to the Act in Jamaica.

The Act applies to all cases where a person dies after May 20, 1993.  It applies not only to cases where a person has died testate, i.e. with a will, but also to cases where the deceased is intestate, i.e. did not have a valid will at the time of death.  However, this article primarily focuses on circumstances where an individual dies with a valid will.

The aim of the Act is to give the court power, in defined circumstances, to modify either a will or rules of intestacy if satisfied that they do not make reasonable financial provision for an applicant.  The following persons may apply to the court to exercise its power:

  1. the wife or husband of the deceased, whether by virtue of marriage or common law;
  2. a child (which includes an adopted child, a child not related by blood who was accepted as family by the deceased, and a child who was in his/her mother’s womb at the time of death of the deceased);
  3. an ex-wife or ex-husband who was being wholly or partly maintained under an order of the court or agreement by the deceased immediately before the death of the deceased;
  4. a parent who was being wholly or partly maintained or is legally entitled to be maintained by the deceased immediately before the death of the deceased.

The Court is required to make an objective assessment of whether there has been reasonable provision for the applicant, having regard to considerations such as: the size and nature of the net estate of the deceased,  the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future, the financial resources and financial needs which any other applicant has or is likely to have in the foreseeable future, any obligations and responsibilities which the deceased had towards any applicant or towards any beneficiary of the estate, the deceased’s reasons, so far as they are ascertainable, for making provision or for not making provision or for not making adequate provision for any person by his will and other similar considerations.

Once an application is made, the court has a two-part job.  It must first make a “value judgment” regarding whether the deceased has failed to make reasonable provision for the applicant.  If there is no reasonable provision, the court must exercise its wide discretion to determine how best to remedy the failure.

Applications of this nature are therefore quite subjective, and outcomes vary based on the need of the applicant and other surrounding circumstances.

The potential operation of the Act, as well as the significant unpredictability of its application, make it all the more necessary for persons who create wills to consult with Attorneys-at-law prior to finalising their testamentary wishes.

Similarly, the advice of Attorneys is also valuable to any person for whom reasonable provision was not made under the will of a deceased or under the rules of intestacy.

Y.M. Fitz-Henley is an Associate at Myers, Fletcher and Gordon, and is a member of the firm’s Litigation department. He may be contacted at yakum.fitz-henley@mfg.com.jm or via the Firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.