Writing a Will in Jamaica Is Not Enough. Your Family Can Still Challenge It.

Kingston, Jamaica — 8 January 2023

Jamaican law recognises a broad freedom to dispose of property by will as the owner sees fit. But that freedom has a limit that many Jamaicans who write wills do not know exists: the Inheritance (Provision for Family and Dependants) Act. Under that legislation, certain relatives who are left out of a will, or provided for inadequately, may apply to the court for financial provision from the estate. A will, properly drafted, is not automatically the last word.

Who Can Apply

The Act applies to the estates of persons who die after 20 May 1993, whether they died testate or intestate. The categories of person entitled to apply are defined by the legislation and include a spouse, a former spouse who has not remarried, a child of the deceased, a person treated as a child of the family, and any person who was being maintained by the deceased immediately before the death. An application must be made within six months of the date on which a grant of probate or administration is issued, though the court has discretion to extend that deadline in appropriate circumstances.

What the Court Can Order

Where an application succeeds, the court has wide powers. It can order periodic payments from the estate to the applicant, a lump-sum payment, the transfer of specific property that might otherwise have gone to a different beneficiary, or the establishment of a trust fund for the applicant’s benefit. The effect is that a will which leaves everything to one person or set of beneficiaries may be rebalanced by the court to make provision for a dependent who was left out, even deliberately.

A United Kingdom case involving a mother who deliberately excluded an estranged adult daughter from her estate, leaving the bulk to charities, illustrates how the courts approach these claims. The daughter ultimately received a court-ordered sum from the estate, despite the clear testamentary intention to exclude her. Jamaica’s Act is structured similarly, meaning that a testator who intends to exclude a relative covered by the legislation should take specific legal advice on how to document that decision and structure the estate to minimise the risk of a successful challenge.

Implications for Jamaica’s Property Owners

For Jamaican property owners, the existence of the Act has practical implications. A will that makes no provision for a dependent child, a spouse, or a person financially maintained by the deceased is not necessarily safe from challenge simply because it was properly executed. Where a testator has considered the Act and made a deliberate decision to exclude or limit provision for a potential applicant, the reasons for that decision should be recorded clearly, ideally in a letter of wishes kept alongside the will, and the will should be drafted by an attorney familiar with the legislation. Wills written without legal advice, or without awareness of the Act, may leave estates vulnerable to applications that the testator neither anticipated nor intended to invite. In the context of rising property values in Jamaica and the generational wealth that land represents, getting this right matters more than ever.

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