MCGREGOR
IN THE movies, much ceremony usually surrounds the 'reading of the will'. Care is usually taken to ensure that all potential beneficiaries are present, when the attorney reveals with a flourish the well-kept secrets contained in the Last Will and Testament. It is not unusual for some of those present to find that absolutely no provision was made for them. Others will be happy with what has been left to them.
We return to the reality of the Jamaican experience. The will does not need to be "read"; the beneficiaries do not have to be present when the details of the will are disclosed. Most importantly, the beneficiaries do not automatically assume ownership of the gifts under the will.
Whether a person died testate (leaving a will) or intestate (without leaving a will), there are certain basic things which must be done before the assets in that estate can be distributed. In the event of intestacy, it is usually the spouse or children of the deceased, who know that they ought to share in the estate, who will need to, take action. While, in the event of testacy, where an executor is appointed under the will, it will be the executor's duty to act.
In either case, the best advice is to consult an attorney so that the appropriate, and most expeditious, action can be taken to wind up the deceased person's estate. In cases of intestacy, this will involve making an application to the court for a grant of letters of administration, while in the case of testacy, an application for a grant of probate will be necessary.
WINDING UP AN ESTATE?
In a typical situation, it means applying for probate or letters of administration, gathering all the deceased's assets, paying his debts and distributing the gifts to the beneficiaries as prescribed under the will, or in accordance with the rules of intestacy. In an appropriate case, where the deceased died in an accident, it may also mean commencing proceedings in court to recover damages in a fatal accident claim, the proceeds of which will become a part of the pool of assets available for distribution to beneficiaries. In other cases, there may be a need to apply to the court for an order to preserve assets, which are to be distributed to the beneficiaries, or to file suit to recover rent.
The short story is that the court will usually have to get involved before a beneficiary will be able to enjoy his gift. Just how long this will take and the intensity of the process will depend on many factors, such as:
Whether there was a will. It generally takes longer to obtain a grant of letters of administration than a grant of probate.
Whether executors were named in the will. If there was none, an application for letters of administration will have to be made, rather than an application for probate, but the gifts will be distributed in accordance with the provisions of the will.
Whether the will was properly executed. If two witnesses did not sign the will, as well as the testator, the will is void, and the deceased would be deemed to have died intestate.
Whether the deceased's last will, or only a copy, could be found. If only a copy could be found, an application will have to be made to the court for an order that the copy will may be accepted as the last will and testament.
There is always a possibility that intense litigation may follow the death of an individual. For example, there may be a challenge to the validity of the will on the ground that it was not signed by the deceased, that he might have signed it under duress or that he was not mentally competent to prepare the will. The only way to minimise incidents of this nature is to ensure that your will is properly prepared and properly executed.
In the end, as beneficiaries, potential beneficiaries, or executors charged with the responsibility for carrying out the deceased's wishes, it is important to act promptly in winding up the estate.
Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com.
