A will no one can change

Oran Hall, Contributor

QUESTION: My father lives in Jamaica and he wants to make a will that no one can change or replace with a new one. Firstly, where could we get this done and is there any special name for this irrevocable will? If possible, could you tell me how long it takes to complete this legal document in Jamaica?

- Emma

FINANCIAL ADVISOR: When your father makes his will, no one can legally change it or replace it with another will. He can change it or replace it when he wishes and there are steps that he can take to reduce the risk of tampering by unscrupulous persons.

The will should be written, which includes it being typed, and the testator must have the requisite mental capacity to execute it. Your father can write his will himself.

Will forms are available at several places, bookshops and the Administrator General's Department, for example. He can write it on a plain sheet of paper if he wishes and it will be valid if meets the requirements of the law.

It is advisable that he engages the services of an attorney-at-law or law firm if he has complicated or touchy issues of with which to contend.

A will can have many clauses, some of which are optional. It should identify the testator, that is, the person making the will. There should be a clause stating that it is the last will and testament of the testator and one revoking all former wills or codicils (amendments to a will) and it should be dated. These are very important to reduce the risk of impostors usurping the wishes of the testator.

The will should name the executor or executrix, who will distribute the assets of the deceased according to the instructions contained in the will, and is the only person or institution authorised to apply to the court for probate of the will.

The will also identifies the beneficiaries to receive specific assets and the residue of the estate. And, there are generally instructions to pay all debts, funeral, and testamentary expenses.

ADDITIONAL CLAUSES

Optional clauses address such issues as survivorship, investment discretion, life interest in a specific asset and appointment of guardians if there are children who are minors.

For a will to be valid, it must be signed or acknowledged by the testator in the presence of two witnesses, who must each sign in the presence of the testator, but not necessarily in the presence of each other. The witnesses must be able to sign their names, and their names and addresses should be legible. For individuals to benefit under a will, neither they nor their spouses should sign as witnesses.

To secure his will, your father should put it in a safe place such as a safety deposit box at a financial institution, but he can also take advantage of a facility offered by the Registrar General's Department known as registering a will.

One advantage of registering a will is that in the event the original is lost, there is the security of getting a certified copy from the Registrar General's Department (RGD).

To register a will at the RGD, the document has to be presented there and be assessed for the applicable charges. The department makes an 'original copy' and returns the original will to the testator within four to six weeks of it being lodged with the RGD.

No will is irrevocable. Indeed, your father is free to make a new will as often as he wishes, but he should be careful to destroy any he has replaced. That would eliminate much confusion and wrangling.

How much time it takes to complete a will is up to the parties concerned in bringing it to the point where it qualifies as a valid document. And it does not have to be registered to be valid.

Oran A. Hall, a member of the Caribbean Financial Planning Association and principal author of 'The Handbook of Personal Financial Planning', offers free counsel and advice on personal financial planning.finviser.jm@gmail.com.