INTESTACY AND

DISTRIBUTION
LECTURE 2
 INTESTACY AND DISTRIBUTION

 Two principal strands to probate practice:

 Law of Wills (i.e. testate succession);
 Law of intestate succession (i.e. no will, or no effective will made (total intestacy) or will made
but not effective to cover all assets (partial intestacy)
WHERE THERE IS NO
WILL….

…THERE IS STILL A WAY…

 INTESTACY AND DISTRIBUTION

 Intestacy occurs where deceased fails to effectively dispose of the beneficial interest in his property by will. Deceased
may died totally intestate; so no effective disposal of any beneficial interest in the property.

 The meaning of 'intestate' in Black's Law Dictionary is “to die without leaving a will”. A person is said to die intestate
when he dies without making a will, or dies without leaving anything to testify what his wishes were with respect to the
disposal of his property after his death.

 This arises where:

 In ordinary case, no will made by deceased; or
 Will ostensibly made, but invalid in law because, for example, statutory formalities not observed, lack of testamentary
capacity; or
 Valid Will made, but no effective disposition of property.
 Deceased may died partially intestate, so valid disposal of some beneficial in property by Will, but no all interest so
disposed of. Usually, this occurs where gift of residue fails.
 INTESTACY AND DISTRIBUTION

When a person dies without leaving a Will, he is considered to have died intestate.
The Intestate’s (Testate and Property Charges) Act is the piece of legislation that governs
intestacy in Jamaica. The Act, also dictates how the deceased’s property will be
administered.

The obvious disadvantage here is that the decease will have no say in how his assets are
distributed and to whom. Instead, the Act will determine who gets what. For this reason,
probate lawyers always encourage clients to execute a valid Will. It is always advisable to
contact a probate lawyer to ensure that the Will is executed properly. A Will that is not
executed properly will be of no effect and the estate will be treated as if the deceased had
died without executing one.
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Also, sometimes a valid will exist, but not all the assets are included in the Will, or the Will is
otherwise valid, but a gift may be void.

In this case, those assets will fall on intestacy and the Intestate Estate and Property Charges
Act will apply to those assets.

Where intestacy applies, an application is made to the court for a Grant of Letters of
Administration for the deceased’s estate to be wound up and the assets distributed.
 The deceased’s assets are not and should not be
distributed on a first come first serve basis. Instead,
the Administrator of the estate should apply for
Letters of Administration before the assets can be
distributed.
Who can Apply
for Letters of Administration?
 INTESTACY AND DISTRIBUTION

 Classes of Persons eligible to benefit on Intestacy

Legislation prescribes the classes of relatives and other persons who inherit intestate’s
property, and the ultimate destination of property in default of these person.
 INTESTACY AND DISTRIBUTION

 Intestate’s Estate and Property Charges Act

Unlike the probate process, there is no appointed executor when applying for Letter of
Administration. Therefore, the Act lays out an order of priority as to who has priority to
make the application.
The Act sets out the Table of Distribution, section 4, indicating eligible beneficiaries who
take “residuary estate” of intestate, that is, broadly every beneficial interest in property
after deducting funeral or administration expenses, debts and liabilities.
 INTESTACY AND DISTRIBUTION

Primary Beneficiaries are surviving spouse and issue, and once they survive deceased, no
other class of beneficiary can take. The person who stands highest is the surviving spouse of
the deceased. The spouse is either the surviving husband or wife or the surviving common-
law husband or wife.
In the event that the surviving spouse does not wish to make the application or there is no
surviving spouse, then the children of the deceased are next in line, followed by parents,
siblings, grandparents, aunts and uncles in that order.
Who is a ‘spouse’?
A CLOSER LOOK AT THE JAMAICAN SITUATION
 INTESTACY AND DISTRIBUTION

 Intestates Estate and Property Charges Act

 Who is surviving “spouse” for purposes of Act?
Legal spouse is covered. However, Jamaica also recognizes common law spouse who meets certain requirements.
(See section 2 of the Act.)
Defines spouse thus :
Section 2 (1) (d) (i) “a single woman who has lived and cohabited with a single man as if she were in law his wife
for a period of not less than five years immediately preceding the date of his death; and (ii) a single man who
has lived and cohabited with a single woman as if he were in law her husband for a period of not less than five
years immediately preceding the date of her death;
(e) “single woman” and “single man” used with reference to the definition of “spouse” include a widow or widower
,as the case may be,or a divorcee. (2) Where for the purposes of this Act a person who is a single woman or a
single man may be regarded as a spouse of an intestate then, as respects such estate , only one such person shall
be so regarded.”
 INTESTACY AND DISTRIBUTION

A common-law spouse is a single woman who had lived and cohabited with a single man as if they
were married, for five years or a single man having lived and cohabited with a single woman as if they
were married for a period of five years or more. It should be noted however that only one person may
be regarded as the spouse under this law.
Note: for the purposes of intestate succession, “single man / woman” concept includes widow, widower
and divorcee.
Common law spouse’s entitlement not automatic. To claim benefit, common law spouse has to apply
for court order confirming status as “spouse” within Act. So will have to adduce evidence
demonstrating that criteria under the statute met.
Only ONE such person will be considered for the purposes of the Act.
 INTESTACY AND DISTRIBUTION

 The Property (Rights of Spouses) Act

 Defines spouse thus:

Section 2 (1)- “:Spouse” includes : “(a) a single woman who has cohabited with a single man
as if she were in law his wife for a period of not less than five years (b) a single man who
has cohabited with a single woman as if he were in law her husband for a period of not
less than five years , immediately preceding the institution of proceedings under this Act
or the termination of cohabitation, as the case may be”
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The next question therefore is what is meant by “as if she were in law his wife”. This imports
something more than the joint sharing of the same space. Conjugal relations may be involved
here, as well as an openness about the relationship, and stability with a degree of permanence.
Finances and the way financial affairs are handled, the role of and attitude toward children,
the parties’ intention and motivation as well as the opinion of the reasonable person looking
on, are all factors to consider.
 INTESTACY AND DISTRIBUTION

See Kimber v Kimber [2000] 1 FLR 384, where the court considered the meaning of
“cohabitation” in a slightly different context. Justice McDonald Bishop (as she then was)
after reviewing authorities suggested a further ingredient. This being that the union should be
monogamous in that there can only be one common law spouse at a time (as distinct from
mere sexual partners or lovers).
See also Williams v Thompson 2010 HCV 03404 unreported Judgment 19th January
2009.
 INTESTACY AND DISTRIBUTION

The learned Judge summarised the approach thus:

“no single factor can be conclusive of the question whether a man and woman were living together
as if they were in law husband and wife. I have come to the conclusion too that there is not (and
there might never be) a closed and exhaustive list of criteria that may be used to determine the
question. It requires, to my mind, a thorough examination of the circumstances of the parties’
interaction with each other as well as their interaction with others while bearing in mind that there
will always be variations in the personalities, conduct, motivations and expectations of human
beings. The court, indeed, will have to make a value judgment taking into account all the special
features thrown up by a particular case to see whether the lives of the parties have been so
intertwined and their general relationship such that they may be properly regarded as living
together as if they were, in law, husband and wife. It has to be inferred from all the circumstances.”
 INTESTACY AND DISTRIBUTION

 Who qualify as children of intestate?

Children born in wedlock eligible.
Children born out of wedlock now placed in same position as “legitimate” children under
Status of Children Act, once criteria laid out in statute satisfied. So prima facie evidence
of paternity established where:

 Certified copy of entry of father’s name on birth register;

 Written acknowledgement signed by mother and man acknowledging his paternity, if
executed in prescribed way; and
 Order of the court in declaration of paternity is conclusive of paternity
 INTESTACY AND DISTRIBUTION

 Table of Distribution
Where the deceased died leaving the following class of persons, the residuary
estate is passed to the beneficiaries in the stated proportions:
Relationship Portion

½ to Spouse ½ to children in equal shares. If only 1 child, 2/3 to the spouse

Spouse, children and parents
1/3 to the Child. (Parents do not share in the estate)

Children and parents only Children take absolutely in equal shares (Parents do not share in the estate)

Spouse and parents only 2/3 to spouse & 1/3 to parents (in equal share if both alive)

Parents take absolutely in equal shares. or children Single surviving parent

Parents survive, but no spouse
takes absolutely.

Brothers and sisters of the whole blood Brothers and sisters of the half blood
If no spouse, children or parent Grandparents Uncles and aunts of the whole blood Uncles and aunts of the
half blood The Crown (as Bona Vacantia)
 INTESTACY AND DISTRIBUTION

Under Jamaican statutory scheme, where spouse survives, then children take fraction of
residuary estate, which varies depending on number of children. Estate held on ”statutory
trusts” in favour of issue.
See section 4(5) of Act, where a child predeceases intestate , but leaves issue (i.e child(ren),
grandchild(ren) etc. surviving intestate, then that issue assumes shares that predeceasing child
would have taken had he survived intestate. So if deceased child had left three (3) children
who survived intestate grandparent, child’s share divided equally among those three (3)
children.
 INTESTACY AND DISTRIBUTION

 Continuing beyond surviving spouse and issue, Table of Distribution prescribes order of
priority to succession, and circumstances under which each class takes:
o Parents;
o Other eligible relatives: brothers/sisters (whole before half blood); grandparents;
uncles/aunts (whole before half blood); and
o In default, estate devolves on Crown bona vacantia. There is however provision for
Crown to make provision for dependents (whether remote relatives or not) of intestate,
and others for whom intestate might reasonably be expected to provide.
 INTESTACY AND DISTRIBUTION

ORDER OF PRIORITY IN CASE OF INTESTACY – 68.18 OF THE CIVIL PROCEDURE

RULES
 Surviving spouse
 Children of the deceased
 Issue of any child who died before the deceased
 Father and mother of the deceased
 Brothers and sisters of the whole blood
 Issue of any deceased brother or sister of the whole blood who died before the deceased
 Brothers and sister of half blood and their issues if they died before the deceased
 Grandparents
 Uncles, aunts – whole and half blood
 INTESTACY AND DISTRIBUTION

 SPOUSAL INHERITANCE ISSUES

The Property (Rights of Spouses) Act (PROSA) gives each spouse in a marital or
common law relationship entitlement to 50% share in the family home
FAMILY HOME – dwelling house owned by either or both spouses; principal place
of residence (section 2 PROSA); does not include house which is a gift.
Inheritance issues become relevant when – (1) termination of marriage; (2) divorce;
(3) termination of cohabitation for spouses
 INTESTACY AND DISTRIBUTION

 How to prevent claims by spouses

 Prenuptial Agreement – section 10 PROSA
 Claim on behalf of an unborn child can vary a Prenuptial Agreement
 Spouse can also attempt claim for financial provision order of deceased’s estate under section 4,
Inheritance Provision for Family and Dependents Act
 Jointly held property not subject to claim by third party unless it can be shown that the transfer
was done to defeat interest of third party.
• Re: Jointly held property – see Carr-Glynn v. Frearsons; Lawrence v. Mahfood
Jurisdiction of the Court to
Hear The Application
 INTESTACY AND DISTRIBUTION

 PROOF OF ABILITY TO APPLY FOR GRANT OF ADMINISTRATION

• The applicant must prove his/ her relationship to the deceased;
• Obtain consent of persons in higher degree to apply for grant;
• Must notify by registered mail persons of same degree that he/ she is applying for grant;
and
• For minor beneficiaries – the administrator general has duty to issue her own instrument
of administration.
 INTESTACY AND DISTRIBUTION

An application for letters of Administration can either be done through the Resident
Magistrate Court or the Supreme Court.
If the net value of the estate is less than $1,500,000.00 the application will be made through
the Resident Magistrate Court. However, the application will be made through the Supreme
Court if the value of the estate is more than $1,500,000.00.
To start the process, an application must be made to the Administrator General for a
certificate. This certificate will indicate that the administrator is the appropriate person to
administer the estate.
 INTESTACY AND DISTRIBUTION

The Attorney-at-Law will submit the following documents to the Administrator General’s
Department in support of an application for the said certificate:
1.Particulars required for the Administrator General completed and signed before a Justice of
the Peace.
2. Proof of death either a certified copy of death certificate or a sworn affidavit in proving
death.
3. Oath of Administrator(s) for Letters of Administration prepared by the probate lawyer.
4. Consent of person entitled in priority, if the applicant does not have the prior right to apply.
Note however that if the applicant has first right to apply, then there will be no need to obtain
the consent of the others.
 INTESTACY AND DISTRIBUTION

5. Proof of Relationship of the applicant to the deceased. Therefore, if the applicant is

claiming to be the spouse of the deceased, a certified copy of the Marriage Certificate must be
submitted. If this is not available, then a Perfected Court Order declaring the applicant to be a
spouse of the deceased.
On the other hand, where the applicant is claiming to be a child of the deceased, a certified
copy of the Birth Certificate bearing the deceased’s name must be submitted. Where the
deceased’s name is not on the birth certificate, then a Perfected Court Order declaring the
person to be a child of the deceased in accordance with sections 7 and 10 of the Status of
Children Act will suffice.
 INTESTACY AND DISTRIBUTION

 The Administrator General Issuing The Certificate

The Administrator General will issue the certificate once all the requisite documents and
information are submitted. The Attorney-at-Law will submit the relevant documents to
the court for a Grant of Letters of Administration. Once the Grant is issued, the appointed
administrator(s) will follow the normal process of administering the estate.
 INTESTACY AND DISTRIBUTION

 The Normal Course of Administration

After the Grant of Administration has been issued, the Administrator General will forward a
certified copy of the Grant of Administration to every institution or person holding assets
or titles for assets for the deceased. The Administrator General will also order theses
persons or institution to release these assets and titles to her. The Administrator General
will then post an advertisement in the newspaper for creditors to come forward. The
creditors will have six weeks after the advertisement is posted to come forward. Anyone
claiming to be a creditor must substantially prove their claim. In the event where there are
creditors, the Administrator General will settle these debts.
 INTESTACY AND DISTRIBUTION

 When There Are Minor Beneficiaries

Whenever minors stand to benefit under the administration of an estate, the Administrator
General is barred from distributing the assets of the deceased until the minor attains the
age of majority.
In the interim, if the Administrator General will have the additional duty to:
• Maintain, insure and obtain rental income from real property.
• Invest funds prudently.
• Assist with educational, medical and other crucial expenses of the minor beneficiaries.
 INTESTACY AND DISTRIBUTION

 The Distribution of Assets

When the last minor attains the age of majority (18 years), the Administrator General can
proceed to distribute the assets. The assets will be distributed in accordance with the
Table of Distribution in The Intestate Estate and Property Charges Act. The assets are
distributed according to relationship with the deceased so all persons who stand to benefit
must submit documents evidencing their relationship with the deceased. Your probate
lawyer would have collected these documents from the beginning of the process and
check them. These documents will be submitted by the probate lawyer to the
Administrator General.
 INTESTACY AND DISTRIBUTION

 APPLICATION FOR GRANT OF ADMINISTRATION – 68.9 of Civil Procedure Rules

DOCUMENTS TO BE FILED –
• Oath;
• Death certificate or affidavit in proof of death;
• Grant of administration;
• Advertisements;
• Certificate of administrator-general – applicant can proceed to file grant of representation and if
administrator-general notifies court of her intention to issue a grant, then registrar is to notice
administrator-general that an interested party applied for a grant of representation of the estate
– matter now has to be decided on by the court; and
• Affidavit of delay
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 APPLICATION FOR GRANT OF ADMINISTRATION WITH WILL ANNEXED

• Only executor can apply for probate.
• If will exists, but no executor or executor renounces – then application can be made under 68.8 for grant of
administration with will annexed.
 Documents to be filed –
• oath;
• will;
• death certificate; grant;
• copy of advertisements – 68.35;
• affidavit of delay;
• certificate of admin-general;
• death cert for executor; and
• duly recorded deed of renunciation – must be recorded at island records office.
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 INSTRUMENT OF ADMINISTRATION – ADMIN-GENERAL AMENDMENT ACT 2015

• Instrument of administration – section 53d – admin general issues her instrument of administration as
drafted in part 1 of second schedule and publish in the gazette notice of the instrument issued
• The instrument is done in cases where a minor stands to benefit from the intestate’s estate
• Instrument of administration under section 53d has full legal effect as a grant of representation
• Section 53e –a duplicate of the instrument of administration is to be filed with the registrar of the supreme
court by the admin-general 14 days after issued
• Admin-general also to file within 14 days duplicate of instrument of distribution with registrar of supreme
court
• Section 53f – administrator-general is to give notice to s c registrar of her intention to issue instrument of
administration or distribution
• 53f(c) – administrator-general is not to issue instrument of administration if Supreme Court Registrar
advises her 30 days after the administrator-general sends her notice that someone applied to the court
for a grant of representation.