Editorial | Making wills mandatory

Delroy Chuck’s intriguing idea of making wills mandatory in Jamaica is worthy of discussion, given the vast amount of wealth that lies fallow because potential beneficiaries can’t agree on how to share the estate.

But an important corollary to Mr Chuck’s proposition is not only making Jamaicans comfortable with the idea of their own mortality, but the acceleration of efforts to unlock the wealth of people who are generally deemed to be poor, by making it easier for them to gain titles to properties they possess, especially land. Too often such property can neither be formally passed down nor collateralised because of an absence of proof of ownership.

In Jamaica, disputes of the kind to which Mr Chuck referred are called fighting over “ded lef” (what is left by the dead), which the justice minister recently said fuelled not only quarrels but actual violence.

“Nothing creates more violence, grievances, conflicts, and death, than ded lef,” Mr Chuck said in Montego Bay last week at a function promoting the work of the Administrator General’s Department.

“.... People are fighting over what they never expect; fighting over what they believe they should get; people fighting over what they think that the deceased person should have left for them,” he added.

In May, Mr Chuck reported to Parliament that the administrator general, who oversees probates and administers the estates of people who die without leaving wills, had more than J$50 billion (US$322 million) under management, largely because of disagreements between the beneficiaries. Many of these quarrels stretch back several years.

In one case, an estate worth over J$800 million, or nearly two per cent of administrator general’s portfolio, is in limbo because beneficiaries can’t agree how to share the spoils.

MEDIATION

Mr Chuck suggested that to perverse the value of estates, the Administrator General’s Department become far more aggressive in forcing people into mediation, and where necessary, use the power of the office to monetise the property.

“Especially with an estate that has real property, my instruction is rather than allowing the real estate to deteriorate, sell the real estate, collect the funds and then distribute it at the end of the day,” he told this newspaper.

This newspaper agrees with Mr Chuck, although he, and the Administrator General’s Department, should be prepared for the increased legal challenges that will accompany such moves.

We are also sympathetic to, though not fully embracing of, the idea he floated that writing wills should probably be a legal obligation, which, according to the minister, is a requirement of all members of the military.

Not only would such a law be difficult to administer and enforce in the wider population where military law does not apply, but would raise serious questions about infringement of people’s constitutional right to privacy. The issue would be whether this remedy to the problems highlighted by Mr Chuck could meet the test of being “demonstrably justified in a free and democratic society”. We think not.

In this regard, Mr Chuck’s alternative of starting by encouraging workers generally, but those in the public sector in particular, to prepare wills, seems more practical.

“It may well be that the Government and permanent secretaries should be told to encourage staff – not to force them like the JDF because people have options ­– but it would be good to just tell them to make a simple will,” he said.

Although hard data on the question are not available, Jamaicans, including educated ones who have accumulated some wealth, are seemingly reticent about preparing wills – perhaps because it draws attention to their mortality.

ISN’T UNIQUE

The issue of a lack of estate planning, however, isn’t unique to Jamaica. A survey in the UK earlier this year showed half of adult Britons didn’t have wills. That was the case with one in three (a third) people 55 and older.

In the United States the data, from varying sources, is uneven, but the majority of adults appear not to have estate plans. A 2021 poll by the Gallup organisation found that 46 per cent of adult Americans had wills, down from 51 per cent in 2005. However, a survey this year by an organisation that provides referral services for homes that provide assisted living for the elderly, found that only 34 per cent of Americans had estate plans, although 64 per cent believed that people should have wills. Similarly, half of Canadians, including 20 per cent of those over 55, are without wills.

In our case, Mr Chuck’s ministry and the Administrator General’s Department should engage in a public information campaign on the logic and efficacy of having wills, not least being its potential to help maintain family cohesion.

At the same time, large swathes of Jamaicans control property, mostly with respect to multigenerational family land and home, which they don’t formally own. They don’t hold titles – the gaining of which is a tedious, complex and expensive process in Jamaica. Successive administrations have, for half a century, promoted schemes to deliver titles to people. These programmes have been slow and often log-jammed. That needs to change.

Over two decades ago, the Peruvian developmental economist, Hernando de Soto, pointed out the poor people held trillions of dollars in resources globally which couldn’t be collateralised and transformed into wealth because of the lack of titles. Fixing that problem will ease poverty and make it easy to transfer wealth to future generations.

That might worsen Mr Chuck’s problem with wills. But it is a better problem to have than poverty.