Kingston, Jamaica — 25 October 2022
Jamaicans have long understood, often from painful experience, what dead lef means: the assets, land, shares, jewellery, money, left behind after a death, and the conflicts that too frequently surround them. Writing a will is the most direct way to prevent those conflicts, but simply having a will is not enough. A will that is poorly drafted, out of date, or internally inconsistent can cause as many problems as dying without one. The question is not only whether to write a will, but how to write one that actually does the job it is meant to do.
Why Wills Fail
Attorneys who work in estate law describe several recurring ways in which wills fall short of their purpose. The most common is failing to include a residuary clause. A will that specifies gifts for named individuals but does not include a catch-all provision for everything else leaves a partial intestacy: the named gifts are governed by the will, but the remainder of the estate passes under the intestacy rules. This may not be what the person intended, and it can create precisely the disputes the will was supposed to prevent.
A second common failure is naming a beneficiary who predeceases the person making the will, without updating the document. In such cases, the gift lapses. If there is no residuary clause, or if the residuary clause does not account for the possibility, that asset may fall into intestacy. The named beneficiary’s children may or may not inherit depending on the specific circumstances, and the outcome may not match the original intention.
A third problem is naming an executor who, by the time of the death, is unwilling or unable to act, whether through age, illness, estrangement, or simply having predeceased the testator. An executor who cannot act does not automatically lose the appointment unless the will provides for a replacement. The practical result can be delay, additional court applications, and family friction while the situation is resolved.
When to Update a Will
A will is a living document in the sense that life changes around it. Attorneys recommend reviewing and, where necessary, updating a will after any significant life event: a marriage, which in Jamaica automatically revokes a prior will unless it was made in contemplation of that marriage; a divorce, which does not automatically revoke a will but may change what a former spouse is entitled to receive; the birth of a child, particularly where a prior will did not make provision for children; the death of a named beneficiary or executor; or the acquisition of a substantial new asset that was not referenced in the existing document. A will made in one’s twenties may bear little resemblance to the actual estate it needs to address decades later.
The Property Stakes Are Rising
As property values across Jamaica continue to rise, the stakes attached to estate planning rise with them. A family home that was worth a modest sum twenty years ago may now represent a significant asset, one whose loss to a failed estate administration or a poorly drafted will would have consequences that extend across generations. The decision to engage a lawyer, draft a proper will, review it regularly, and ensure its safe storage is, for most Jamaican property owners, one of the most financially consequential decisions they can make. It is also among the most consistently deferred. The cost of deferral is measured not in money alone, but in families that stop speaking, properties that are lost to legal technicalities, and legacies that never reach the people they were built for.
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