Matters Upon Death: Wills & Intestacy

It had been raining all week but the sun was out bright the morning of his passing. “His life ended with rainbows” is how I like to tell the story Some deaths are expected, preceded by a long illness or short diagnoses even, but his was sudden… “there were no signs”, we would later remark in conversation. It was as though he made an agreement with life, much like the moon does with the sun to ensure a new day would rise and we are not forever shrouded in darkness. You can never be prepared for loss, it always feels so sudden, intense, despairing. He prepared us all for his death though. My husband was not a planner, he was always so spontaneous, even in death, yet there was a Will. He chose a close reliable friend and a legal professional as his executor. He laid out all his instructions to pay his debt and funeral expenses. I was not his executor, and though I thought differently then, I am now immensely grateful to him for this kindness. Grief is very big and heavy, no more burden could I have borne.

The days and weeks following his death were for reconciling his life and ours without his presence; certainly not for planning funerals and scouring accounts for money to pay bills and debts. Thinking on it now, his making a will was consistent with his nature as protector and provider. We met with family countless times after his passing, and with Attorneys twice; once for the reading of his will and finally to sign ‘documents’, which seemed to be their favourite word. One kept on repeating, “We’re almost through with these documents” and there were many. Documents for transferring bank accounts, life insurance proceed documents, documents for transferring properties, the car, investments…I didn’t even know we owned shares in Tesla. There was a trust fund for the children, “who was this man?” I thought several times. My husband left no burdens just the memory of his life.

I’m told there was a legal process to prove the validity of his will where the court granted a document called a Grant of Probate which named his executors and empowered them to act in accordance with the wishes he so meticulously put down in his will. There was even a document attached to his will called a Codicil where he made amendments to his will when we gained or lost property. I say, “I’m told” because I did not step a foot into a courthouse, or even an Attorney’s office for that matter, his executors arranged everything and paid for everything, “in accordance with his wishes!”

AT THE HEART OF IT:

Estate planning encapsulates the phrase “set your house in order”. In the area of Probate the more matters we engage the more we come to appreciate Pema Chödrön when she stated, “How we live is how we die.” Death indeed presents us with the biggest and most heroic challenges of our lives. Those who shy away from this challenge do not escape it, rather their challenge remains for those who are left behind and, we are finding more and more in our jurisdiction, end up enriching the state who stand in ‘bona vacantia’. ‘Bona Vacantia’ is one of those lovely Latin words we still use in law and translates simply as “vacant goods”. Vacant goods is the name given to ownerless property which in law passes to the state. The scenario is prevalent in our little part of the world, see the Notices in your local newspaper…

Joe Brown dies leaving a caregiver and 2 nieces. His estate consists of the marital home, several acres in the countryside and some savings spread across 2 bank accounts. Having died without a Will his estate falls into what is legislated as intestacy, which are laws developed by the state dictating via a table how a person’s estate is to be legally divided among his living relatives(see Table I). Now, there is no provision in this table for a caregiver nor for nieces. The old English term “heirs of my body” is still the order of inheritance in this land we love. Never mind that Joe told his caregiver that she can have his house and his nieces the land in the country and the money in his bank account; word of mouth does not a Will make. Moreover, caregivers and nieces are not of the class of persons defined by the law in priority of inheritance. They may not make any claim to Joe’s estate as they are neither saved by a Testamentary instrument, (fancy for Will) nor the laws of Intestacy; the state is however. Joe’s estate is now ownerless as there are only two ways to make a claim to a deceased’s estate, via a Will or Intestacy and there remains no one but the state with its ultimate power of …Bona vacantia!

Table 1: Table of Distribution – Intestates Estates & Property Charges Act, Jamaica (https://agd.gov.jm/services/administration-of-estates/) 

Consider how the following scenarios will play out for Joe:

Scenario 1 –       Joe Brown dies leaving an estranged wife and his longtime friend turned sweetheart and the 3 beautiful children they sired in the latter part of his life, but no Will. Joe has a substantial estate with several real estate properties, bank accounts, investments and insurance policies.

Scenario 2 –       Joe Brown suffers from a stroke and is unable to talk, his recovery is slow and his doctors are not optimistic as to his recovery, this is his second stroke. His next of kin is a daughter he fell out of contact with after her mother passed because he begun a romantic relationship with another woman not too long after his wife passed away. That relationship is long over and Joe has been living on his own for several years. He has no living will. Joe runs a small business with 5 employees and several outstanding contracts with other companies. He has both personal and commercial vehicles with outstanding leases as well as a mortgage on his home.

…What will happen to Joe’s property in both Scenarios?