A will’s legality across countries

Dear Mrs Macaulay,

Thanks for your informative pieces each week. I have a question of my own that I need help understanding. My spouse and I have assets in Jamaica as well as in the United States. If we should do a will in one or the other country, is it legally binding and honourable in both when we die? Thanks for all your help.

Thank you for your supportive statement about my weekly columns. The encouragement is gratifying.

Now to your question. The short answer to your question is yes, they would be legally binding. The first point to mention is that both the United States and Jamaica are common-law countries and though the United States is a foreign country under the laws of Jamaica and Jamaica is a foreign country under United States laws, they have a commonality in their fundamental provisions relating to the making of legally effective wills.

And indeed, the process of obtaining probate of wills is common to both. I do admit that the United States has in certain respects, in certain states, gone beyond Jamaica in what kinds of mode the law would recognise a legally effective will.

The legal requirement which is generally applied when it comes to the probate of a will made elsewhere than in the country of the application is that the will must be legal and effective under the laws of the country in which it was made and that it must meet the legal requirements of a provable will in Jamaica. The general basic laws of both countries require that a will be done by the testator in writing, in which the testator clearly gives and bequeaths his property as he wishes to clearly named and identifiable persons.

The will should also include the names and addresses of the executor or executors, if more than one. It is always advisable to have more than one as anyone named as executor can refuse to act and so renounce their appointment, or can reserve acting pursuant to the will until some future time, or the reservation may continue until after the entire estate has been settled.

Legally effective wills generally include the direction from the testator to the executor(s) that all just debts and testamentary expenses must be paid by them before the will deals with the gifts to the beneficiaries. This is to ensure that the legal obligations of the testator to private individuals/business entities and government revenues are paid first before any gift after is made. It is also generally common to both jurisdictions that the executors are entitled to a fixed commission in law for their handling of the estate.

The gifts being made are listed in separate paragraphs per gift for clarity and this section is normally concluded with a paragraph directing the executors how they should deal with any residue of the estate which the testator has at the time of his death. Then the signature section for the testator is prepared, which is signed under the hand and seal of this person on a specified date, and in the presence of two witnesses who attest on the document that they were both present at the same time and witnessed the testator sign the document in the presence of each other and of them both, and they then signed and appended their full names, occupations and addresses.

Now after the death of the testator and probate of the will has been granted, say, in the United States, then since there are Jamaican assets included in the gifts of the will, the probate with will attached would be the subject of an application in the courts of Jamaica for it to be re-sealed. In essence, this is the application of probate in Jamaica. It will be based on the oath of the executors in the same way as an original application for probate would have been.

Finally, revenue payments to the respective government states and otherwise will have to be paid in respect of each estate. However, the principle against double taxation will be relevant and the lawyer acting for the estate will have to see to this aspect.

This is all I can think of to answer your query and I hope I have clarified the matter for you.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver. com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5.

DISCLAIMER:

The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.