Last Will & Testament: Is your gift enough?
Last week we highlighted some of the basic things you should bear in mind when making your last will and testament. Knowing the basics includes understanding the different players in your will, and their role. The key players are you a.k.a. the testator, the beneficiary, the executor, and the witnesses. Other basic but critical considerations include the formalities required to make a valid will in Jamaica.
Did you give your best?
A testator’s intentions are not interfered with lightly but our laws recognize this may be necessary. Jamaica allows persons who believe that a will did not make reasonable financial provision for them to ask the court to make additional provision.
Was your best reasonable?
In 2003 a testator found the love of his life and she was encouraged to terminate her employment in Kingston, give away her furniture, and move to the testator’s home in St. Elizabeth. They got married in November 2004 and during their marriage the wife took care of the testator and the house, while the testator provided all the financial needs. Unfortunately, the testator passed after a few months of marriage but he had a will.
Under the will, the testator’s home in St. Elizabeth, and his car were given to his daughter from his previous marriage, and his granddaughter. For his wife, he provided a life interest in a bedroom and bathroom situated downstairs the same home, and his pension. The life interest means, that the wife should have use of the bedroom and bathroom for the rest of her life.
Considering the house, car and pension were the testator’s main assets, do you think that reasonable financial provision was made for the wife? The wife did not think so and asked the court to increase the provision made for her. The court agreed, and the reason is in details.
The house
The court found that the housing accommodation was “totally unsatisfactory as there are no proper bathroom or kitchen facilities attached to the downstairs bedroom.” Also, the daughter initiated court proceedings to ensure that the wife was limited to the bathroom and bedroom downstairs. The court concluded that the wife and daughter were not existing in a reasonable manner.
The pension
The wife could only benefit from the pension when she became 60 years old, on her next birthday, which was 5 months away when the case concluded.
What can the court do?
Once the court concludes that reasonable financial provision was not made, Jamaica’s law identifies factors which the court should consider when deciding what order it will make. The factors considered include:
The size and nature of the husband’s net estate
While the wife was limited to a bedroom and bathroom downstairs, the entire house has 6 bedrooms, 2 kitchens, a living and dining room.
The wife’s mental or physical disability
The wife gave evidence that she was diagnosed with cancer and kidney disease since early 2006, and cervical cancer since June 2006. She also gave evidence regarding traveling to Kingston twice per week for dialysis.
The husband’s ascertainable reasons for not making adequate provision.
The court considered that the wife had adult children from a previous relationship. As well as the short duration of the marriage. The court concluded that the husband wanted to provide for the wife until her passing.
The wife’s conduct towards the husband and their relationship
Though the marriage was of a short duration, the court concluded it was a happy marriage and the husband provided for all her financial needs. The wife was even added as signatory to the bank account his pension was lodged to.
Other relevant factors
The fact that the daughter stated she would build adequate bathroom and kitchen facilities for the wife downstairs was relied on. The wife would start receiving a widow’s pension in a few months was also important.
After considering all the circumstances the court decided:
- that the title to the car should be transferred to the wife for her immediate use;
- the wife should enjoy all the necessary facilities in the house to enable her to benefit from her life interest;
- the wife and daughter should agree on what would be adequate for the wife to live downstairs; and
- the wife should occupy the master bedroom with bathroom, a kitchen and other facilities until the construction downstairs was complete.
Do you think the court gave the wife too much? Our next article will look at other scenarios where a will was challenged.
Until next time, stay safe.
Disclaimer by the author: Nothing in this article is to be taken as legal advice. You should consult an attorney regarding your specific case. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.