Wills Act

PUBLISHING DETAILS Cap. 186 [Jamaica Cap. 414] of the 1963 Revised Edition of the Laws consolidated with Laws 9 of 1995 (part), 27 of 1977 (part), 4 of 2003 (part), 35 of 2020, 46 of 2020 and 56 of 2020. Revised under the authority of the Law Revision Act (2020 Revision). Originally enacted — Cap. 186 -1st January, 1964 Law 27 of 1977-5th December, 1977 Law 9 of 1995-13th September, 1995 Law 4 of 2003-13th June, 2003 Law 35 of 2020-4th September, 2020 Law 46 of 2020-4th September, 2020 Law 56 of 2020-7th December, 2020. Consolidated and revised this 31st day of December, 2020. Note (not forming part of this Act): This revision replaces the 2020 Revision which should now be discarded. Short title This Act may be cited as the Wills Act (2021 Revision). Definitions In this Act — “child” includes an individual — (a) who is the offspring of a party, or both parties, to a civil partnership; or (b) who has been treated by a party, or both parties, to a civil partnership as a child of the family, including a step child, an adopted or foster child or a child born to parents who were not in a civil partnership; “civil partner” has the meaning assigned by section 2 of the Civil Partnership Act, 2020 [Law 35 of 2020]; “civil partnership” has the meaning assigned by section 2 of the Civil Partnership Act, 2020 [Law 35 of 2020]; “next of kin”, in relation to a person, includes the person’s civil partner; “personal estate” includes leasehold estates and other chattels real, and moneys, shares of Government and other funds, securities for money (not being real estate), debts, choses in action, rights, credits, goods and all other property whatsoever which by law devolves upon the executor or administrator, and to any share or interest therein; “real estate” includes messuages, lands, rents, tenements and hereditaments, whether freehold or of any other tenure, and whether corporeal, incorporeal or personal, and any undivided share thereof, and any estate, right or interest (other than a chattel interest) therein; and “will” includes a testament and a codicil, and an appointment by will or by writing in the nature of a will, in exercise of a power; and also to an appointment by will of a guardian of a child, and any other testamentary disposition. What may be devised or bequeathed by will It shall be lawful for every person to devise, bequeath or dispose of by that person’s will, executed in manner hereinafter required, all real estate and all personal estate which that person shall be entitled to either at law or in equity at the time of that person’s death, and which if not so devised, bequeathed or disposed of, would devolve upon the heir-at-law or customary heir of that person, or if that person became entitled by descent, of that person’s ancestor, or upon that person’s executor or administrator; and the power hereby given shall extend to estates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament; and also to all contingent, executory or other future interests in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested, and whether that person may be entitled thereto under the instrument by which the same respectively were created or under any disposition thereof by deed or will; and also to all rights of entry for conditions broken, and other rights of entry; and also to such of the same estates, interests and rights respectively, and other real and personal estate, as the testator may be entitled to at the time of that person’s death, notwithstanding that that person may become entitled to the same subsequently to the execution of that person’s will. Estates pur autre vie If no disposition by will shall be made of any estate pur autre vie of a freehold nature the same shall be chargeable in the hands of the heir, if it shall come to that person by reason of special occupancy, as assets by descent, as in the case of freehold land in fee simple; and in case there shall be no special occupant of any estate pur autre vie, whether freehold or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or administrator, either by reason of a special occupancy or by virtue of this Act, it shall be assets in that person’s hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate. Wills of minors (1) No will made before the 19th December, 1977 by any person under the age of twenty-one years shall be valid. (2) No will made on or after the 19th December, 1977 by any person under the age of eighteen years shall be valid. Execution of wills No will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned; that is to say, it shall be signed at the foot or end thereof by the testator, or by some other person, in the testator’s presence, and by the testator’s direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and such witnesses shall attest and subscribe the will in the presence of the testator, but no form of attestation shall be necessary. Every will shall, so far only as regards the position of the signature of the testator, or of the person signing for the testator as aforesaid, be deemed to be valid within this Act if the signature shall so be placed at, after, following, under, beside or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such signature to the writing signed as the testator’s will; and no such will shall be affected by the circumstance that the signature shall not follow or be immediately after the foot or end of the will; or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature; or by the circumstance that the signature shall be placed among the words of the testimonium clause, or of the clause of attestation, or shall follow, be after or under the clause of attestation, either with or without a blank space intervening or shall follow, be after, under or beside the names, or one of the names, of the subscribing witnesses; or by the circumstance that the signature shall be on a side, or page, or other portion of the paper or papers containing the will whereupon no clause or paragraph, or disposing part of the will shall be written above the signature; or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature; and the enumeration of the above circumstances shall not restrict the generality of the above enactment; but no signature under this Act shall be operative to give effect to any disposition or direction which is underneath, or which follows it, nor shall it give effect to any disposition or direction inserted after the signature shall be made. Appointments made by wills No appointment made by will in exercise of any power shall be valid, unless the same be executed in manner hereinbefore required, and every will executed in manner hereinbefore required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will, made in exercise of such power, should be executed with some additional or other form of execution or solemnity: Provided that any soldier being in actual military service or any mariner or seaman being at sea, may dispose of that person’s personal estate as that person might have done before the making of this Act. Publication not necessary Every will executed in manner hereinbefore required shall be valid without any other publication thereof. Will not to be invalid for incompetency of attesting witness If any person who shall attest the execution of a will shall, at the time of the execution thereof or at any time afterwards, be incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid. Gift to attesting witness to be void

If any person shall attest the execution of any will to whom or to whose wife, husband or civil partner any beneficial devise, legacy, estate, interest, gift or appointment of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift or appointment shall, so far only as concerns such person attesting the execution of such will or the wife, husband or civil partner of such person, or any person claiming under such person or wife, husband or civil partner, be utterly null and void; and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof notwithstanding such devise, legacy, estate, interest, gift or appointment mentioned in such will. Creditor attesting will may be a witness to prove its execution

In case by any will any real or personal estate shall be charged with any debt or debts, and any creditor, or the wife, husband or civil partner of any creditor whose debt is so charged, shall attest the execution of such will, such creditor, notwithstanding such charge, shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof. Executor may prove execution of will

No person shall, on account of that person’s being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity thereof. Will revoked by marriage or civil partnership

Every will made by a person shall be revoked by that person’s marriage or civil partnership except a will made in exercise of a power of appointment when the real or personal estate thereby appointed would not in default of such appointment pass to that person’s heir, customary heir, executor or administrator, or the person entitled as that person’s next of kin under the Succession Act (2021 Revision). What shall not revoke will

No will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner hereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore required to be executed, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in the testator’s presence and by the testator’s direction, with the intention of revoking the same. Provision as to alterations made in will

No obliteration, interlineation or other alteration made in any will, after the execution thereof, shall be valid, or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witness be made in the margin, or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will. No will revoked to be revived otherwise than by re-execution or codicil

No will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof or by a codicil executed in the manner hereinbefore required, and showing an intention to revive the same; and when any will or codicil which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown. Conveyance subsequent to execution of will

No conveyance or other act, made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of that person’s death. Will to speak from death of testator

Every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. Lapsed or void devises

Unless a contrary intention shall appear by the will, such real estate or interest therein, as shall be comprised, or intended to be comprised, in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law, or otherwise incapable of taking effect, shall be included in the residuary devise, if any, contained in such will. Leasehold estates

A devise of the land of the testator, or of the land of the testator in any place or in the occupation of any person mentioned in that person’s will, or otherwise described in a general manner, and any other general devise which would describe a leasehold estate, if the testator had no freehold estate which could be described by it, shall be construed to include the leasehold estates of the testator, or that person’s leasehold estates, or any of them to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary intention shall appear by the will. General gift of real or personal estate shall include real or personal estate

A general devise of the real estate of the testator, or of the real estate of the testator in any place or in the occupation of any person mentioned in that person’s will, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend, as the case may be, which that person may have power to appoint in any manner that person may think proper; and shall operate as an execution of such power, unless a contrary intention shall appear by the will; and in like manner a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend, as the case may be, which that person may have power to appoint in any manner that person may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will. Devise without words of limitation to be construed to pass the fee

Where any real estate shall be devised to any person without any words of limitation such devise shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will. How certain words are to be construed

In any devise or bequest of real or personal estate, the words “die without issue”, “die without leaving issue”, “have no issue” or any other words which may import either a want or failure of issue of any person in that person’s lifetime or at the time of that person’s death, or an indefinite failure of that person’s issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of that person’s issue, unless a contrary intention shall appear by the will by reason of such person having a prior estate tail, or of a preceding gift being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or otherwise: Provided that this Act shall not extend to cases where such words as aforesaid import, if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue. Real estate devised to trustee or executor

Where any real estate (other than or not being a presentation to a church) shall be devised to any trustee or executor, such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to that person expressly or by implication. Real estate devised to trustee without express limitation

Where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof shall not be given to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple or other the whole legal estate which the testator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied. Devises of estate tail

Where any person to whom any real estate shall be devised for an estate tail or an estate in quasi entail, shall die in the lifetime of the testator, leaving issue who would be inheritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. Gifts to children who die leaving issue living at death of testator

Where any person being a child of the testator, to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator, leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. What this Act not to extend to

Every will re-executed or re-published or revived by any codicil shall, for the purposes of the Law, be deemed to have been made at the time at which the same shall be so re-executed, re-published or revived. Publication in consolidated and revised form authorised by the Cabinet this 5th day of January, 2021. Kim Bullings Clerk of Cabinet Table of Legislation History: SL # Law # Legislation Commencement Gazette 56/2020 Citation of Acts of Parliament Act, 2020 3-Dec-2020 LG89/2020/s1 46/2020 Wills (Amendment) Law, 2020 4-Sep-2020 LG64/2020/s12 35/2020 Civil Partnership Law, 2020 4-Sep-2020 LG64/2020/s1 Wills Law (2020 Revision) 16-Jan-2020 LG6/2020/s12 20/2012 Children Law, 2003 (Commencement) Order, 2012 22-May-2012 G11/2010/s4 Wills Law (2004 Revision) 23-Aug-2004 G17/2004/s13 4/2003 Children Law, 2003 (part) 1-Jul-2012 G23/2003/s7 Wills Law (1997 Revision) 17-Feb-1997 G4/1997/s4 9/1995 Children Law, 1995 (part- see* in s.2 of Wills Law (1997 Revision)) NIF GE20/1995/s2 27/1977 Age of Majority Law, 1977 (part) 19-Dec-1977 G26/1977/s5 Cap. 186 Wills Law 1-Jan-1964 Revised Laws of the CI (blue books – p.2179) (Price: $3.20)