JTA Seminar, Village Hotel, St. Ann, April 30, 2014

Good Morning Ladies and Gentlemen. It is a pleasure to be here this morning to give this presentation. I want to thank the JTA and Mr. Devon Meek for the kind invitation.

You have been given the topic Wills & Estate Planning but as the preparation of a will is one aspect of Estate planning my presentation will be on Estate Planning.Let’s get the old joke out of the way. The only sure things are death and withdrawal taxes.

Also, let me say this, my presentation is not only for you, but also for your parents. It is a fact, which we must accept that there are persons who prey on elderly people. There are young women who prey on elderly men and induce them to give away their land and money to them, there are young men who prey on elderly women and induce them to give away their property and money to them. So you need to understand what I’m saying this morning so you can speak to your parents. It would be best if your parents were to transfer their property to you while they are alive.

Estate Planning

What is Estate Planning?

• Arranging for the disposal of your assets when you die; or
• Managing your assets if you become incapable of handling your own affairs, whether through mental or physical incapacity – most persons have resigned themselves to the fact that they will die because it is inevitable, but most persons do not think or want to think about something happening to them while they are relatively young and not being able to go about and conduct their business as they have always done

How is Estate Planning Achieved?

• Disposal of assets on death – through the making of a will
• Disposal of assets through other methods while still alive
  • Holding property on a Joint Tenancy
  • An inter vivos transfer
  • Creating a trust

What are Assets?

• All the property you own, whether real or personal
  • Real property – land, house
  • Personal property – motor vehicles, cash, jewellery, insurance policies, stocks, bonds, shares in companies, mutual funds, art, boats, airplanes, intellectual property e.g. digital music, videos and e-books

Why is Estate Planning Important?

• Prevents conflict;
• You can choose how your assets will be distributed;
• Ensures property is distributed in an orderly and efficient manner;
• Minimize the payment of taxes.

Wills

• A will is a legal document which sets out clearly how you want your property to be disposed of on your death.

Advantages of a Will

• Reduces the risk of conflict;
• Ensures your wishes are carried out;
• Helps to protect the interests of your loved ones

Practical advantages

• It is easier and quicker to get a grant of probate than a grant of administration;
• The grant of administration will take longer because the entitlement to the grant is regulated by the Intestates Estates and Property Charges Act;
• Institutions are more likely to deal with an executor; the executor is named in the will and they know they are authorised to deal with this person

Disadvantages of not having a Will

• Risk of conflict;
• Your wishes not carried out;
• Interests of loved ones not protected
  • Because your property will be distributed according to the law – Intestates’ Estates and Property Charges Act. – section 4 – table of distribution residuary estate – every beneficial interest of the intestate in real and personal estate after payment of funeral and administration expenses, debts and other liabilities

Important factors in preparing a will Before

• Make a list of all your assets; it is important to make provision for all assets; if you don’t what happens is that only the assets stated in the will are distributed and the assets mistakenly left have to be distributed under intestacy; so you have the cost and burden of having to make two applications – one for grant of probate and one for grant of letters of administration
• Make a list of all your important documents and keep them in a safe place – e.g. passports, mortgage instruments, birth, marriage and death certificates, bank accounts, stock certificates, land titles, and insurance policies
• Make sure family members or executors know where to find these documents
• Think carefully about who you want to get what asset; make a list if you want; create a chart with names of beneficiaries and assets beside the name
• If a minor is involved you have to appoint guardians and trustees; if not the court will appoint one; guardian – a person having the right and duty of protecting the persons, property or rights of another; so a guardian in this case would be responsible for the day to day welfare of the child, school, health, church; trustee – is specifically appointed under a trust deed to hold trust property for another; so any assets that you want to go to the minor would be transferred to the trustee for the trustee to preserve safely the trust property until you want the minor to have control of those assets
• Think carefully about who you want to act as executor; ensure the person is reliable, trustworthy; appoint at least two persons to ensure continuity of one is not able or not willing to act; if something happens to both – then application has to be made for a grant of letters of administration with the will annexed
• Choose your attesting witnesses – If attesting witnesses dead then have to prove will by examining witnesses who are able to prove the handwriting of the attesting witness

Making the will

• Your will can be handwritten or computer generated;
• Make sure you own the asset you are seeking to devise;
• Describe the asset fully and carefully; better to over describe than under describe; e.g. don’t say “I give my car” say “I give my 2013 red Honda CRV license number …”; you can even give the chassis number and the registration number; in fact I prefer if you bring the title documents to me and I prepare the description from that; for every asset in fact, which comes back to the point of gathering all the documents of ownership of your assets together and keeping them together;
• Sign at the end of the will in the presence of two witnesses who must be present at the same time that you are signing; the witnesses then sign in your presence;
• Make sure you date the will; if there are more than one wills then the date on the will will identify the last or valid will; date can be ascertained from the executor or attesting witnesses
• Proof read the document carefully; make sure there aren’t any mistakes as to names, description of assets; if there is a need for correction then both you and the witnesses need to sign in the margin of the will near to the correction , the cross-out or the change;
• Remember not to give any gifts to the attesting witnesses or their spouses as these will be invalid; s. 10 Wills Act
• If you get married after making your will, then you will have to execute a new will; make sure you destroy the previous will; s. 13 Wills Act
• Ensure that a residuary clause is placed as the last paragraph in order to take care of any property that may be acquired after the will is signed; this clause starts “all the rest and residue of my estate” and you state to whom that will go to;
• If the person to whom you give a gift dies before you then that gift will fail; you can make another will and give the gift to someone else; the only exception under the Wills Act is if the gift was to your child, then the Act provides that the gift will go to the children of that child, if any. S. 28 Wills Act

After making the will

• Put the will away carefully; in your home safe if you have one; in your bank safety deposit if you have one;
• Make sure the executor knows where the will is as this is the person who has to probate it;
• Don’t tell all and sundry about your will.

Joint Tenancy

• Establish joint ownership of assets where this is appropriate

What is joint tenancy?

• A form of ownership by two or more persons of the same property;
• If any of the joint tenant dies, then the entire property automatically goes to the survivor; there is no need for a formal transfer of assets;

Advantage

• Elimination or minimisation of the taxes payable on transfer of assets

Life Insurance Policy

• Simple to execute and relatively inexpensive;
• Proceeds are paid directly to the named beneficiary so no need for formal transfer

Creation of a Trust

• A legal arrangement whereby property, real or personal is held by a person or an organisation called the trustee for the benefit of a specific person, group of persons or an organisation called the beneficiary;
• Contrary to what you read in books and see in movies trusts are not just for very wealthy people, trusts are for everyone;
• Trusts are useful tool to protect your assets from your family and from creditors;
• Two basic types of trusts – living and testamentary;
• Living trust operates during the life of the settlor
• Two types of living trusts –
  • revocable – where you can revoke or cancel the terms of the trust, the trustee or trust property; you can use, enjoy or manage the trust property during your lifetime; allows you to get someone to manage your affairs in the event of incapacity;
  • irrevocable – removes the right of the grantor to remove assets from the trust or make changes after the trust is created
• Advantages – you the settlor get the income from the trust property while the trustee manages the property; protects your privacy; easy to create and change;
• Testamentary trust comes into effect after your death and the transfer of assets to the trustee
• Trustee can be a friend, relative, the settlor (living trust) or a corporation.
• Trustee is responsible for managing your assets and making distributions so you should be careful who you choose as trustee;
• Must be someone who can spend the time to attend properly to the trust, has good management skills and can follow instructions; it is best to get an independent, disinterested party for e.g. a corporation that specialises in these things rather than a family or friend
• Trust is suitable for parents with young children whose education, health-care and living expenses need to be provided for, for people who lack financial experience, for people with special needs e.g. if you have elderly parents to be taken care of, or who suffer from a disability or mental incapacity; people who cannot be trusted with money, e.g. if you have spendthrift, lazy, children, – set up a trust with the instructions they are not to get the capital, the house or land until they reach a certain age when you think they are mature enough to handle the wealth, that they are just to get the income from the trust property, that only their living, education and health expenses are to be paid; persons who foresee potential family problems over the estate.

Inter vivos Transfer

• Transfer of property to another person during one’s lifetime
• Because you are transferring property to your family you would do a transfer for love and affection and so you would pay a lower rate of stamp duty only $30, but normal transfer tax of 5% and registration fee of $200.00; taxes are payable only on the share that is being transferred, e.g. father and daughter hold land as joint tenants and father wants to transfer to the daughter, amount of transfer taxes payable will be calculated on the half of the stated value of the property; e.g. property valued at $19,900,000 transfer tax of 5% is calculated on $9,950,000, stamp duty would be only $30 and registration fee is $200- normal transfer on a sale of land, transfer tax 5%, stamp duty 4% and registration fee is 0.5%.

Finally

• Make sure you maintain and update your estate plan
• Obtain legal advice from an attorney-at-law, we can design an effective estate plan that meets all your needs, that meets all the applicable legal requirements, prepare all the necessary legal documents
• This will prevent legal complications down the road and
• Accomplish exactly what you want

DEFINITION OF SEXUAL HARASSMENT

• ILO Definition
• The International Labour Organization has addressed sexual harassment in a range of instruments .
• The Discrimination (Employment and Occupation) Convention 1958 (No. 111) addressed discrimination in employment on the ground of sex.
• In a 1996 Special Survey on Convention No. 111 the Committee of Experts on the Application of Conventions and Recommendations defined sexual harassment as:
• [A]ny insult or inappropriate remark, joke, insinuation and comment on a person’s dress, physique, age, family situation, etc. a condescending or paternalistic attitude with sexual implications undermining dignity; any unwelcome invitation or request, implicit or explicit whether or not accompanied by threats; any lascivious look or other gesture associated with sexuality; and any unnecessary physical contact such as touching, caresses, pinching or assault.
• At the regional level the Caribbean Community (CARICOM)issued model legislation on sexual harassment in 1991. The model Protection Against Sexual Harassment Act prohibits sexual harassment in the workplace and includes provisions to empower officers to conduct investigations and establish a tribunal to hear complaints.

The Legal Standard for State Actors and Lawmakers

• Duty to comply with ratified international human rights conventions
• Jamaica ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on October 19, 1984 and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women on December 14, 2005.
• This means that Jamaica has a legal obligation to protect women from sexual violence including sexual harassment.
• The State is required to put the necessary legal and administrative mechanisms in place to adequately protect women and to provide them with access to just and effective remedies.
• Duty to comply with the Constitution as the supreme law
• The Constitution of Jamaica 1962 is the supreme law. It guards the human rights of all persons within the country and holds the State accountable for violation of human rights. The obligation to protect human rights extends to a positive obligation on the State
• to protect women from sexual violence which includes sexual harassment.

Harassment of Women

• The vast majority of workers subjected to sexual harassment are women.
• Harassment does not impact women in a uniform way; it is more prevalent against the more vulnerable;
• Those who are financially dependent are at most risk.
• Young workers are common targets.
• Other groups disproportionately subjected to sexual harassment are single, separated, widowed and divorced women.
• The kind of workplace in which a woman is employed is a significant factor in the likelihood of being harassed.
• These inlcude:
• Women in non-traditional jobs;
• Women in predominantly male environments;
• Women who work for male supervisors;
• Casual workers and informal sector workers

Harassment of Men

• Harassment of men
• Although most victims of sexual harassment are women, men can also be victimized in similar ways to women.
• The most vulnerable groups would include young men, gay men, and men working in female-dominated work groups.

Examples of Sexual Harassment

• A variety of behaviour can be designated as sexual harassment.
• These range from behaviour prohibited by the criminal law e.g. rape and sexual assault, to conduct which can be seen as part of day-to-day interactions e.g. comments, jokes and physical interaction.
• Conduct characterized as sexual harassment can be categorised as physical, verbal and non-verbal conduct.
• PHYSICAL CONDUCT
• Physical violence
• Physical contact e.g. touching, pinching
• The use of job-related threats or rewards to solicit sexual favours
• VERBAL CONDUCT
• Comments on a worker’s age, appearance, private life, etc.
• Sexual comments, stories and jokes.
• Sexual advances.
• Repeated social invitations.
• Insults based on the sex of the worker.
• NON-VERBAL CONDUCT
• Display of sexually explicit or suggestive material.
• Sexually suggestive gestures.
• Whistling

Protection Against Sexual Harassment in the Workplace Emplores

• There is no legislation in Jamaica addressing the issue of sexual harassment in the workplace although it is interesting to note that CARICOM issued model legislation on sexual harassment in 1991 called the Protection Against Sexual Harassment Act. However, the common law can be used to provide remedies to persons who are victims of sexual harassment in the workplace for e.g. one can rely on the law of torts (duty of care) and the law of contract (breach of implied trust/constructive dismissal).
• What are the recourses for the victim of sexual harassment?
• If there is company policy against sexual harassment in the contract of employment;
• If the victim is a member of a union and the union handbook addresses the issue of sexual harassment and provides grievance and disciplinary procedures;
• What should be done by victims of sexual harassment in the workplace and what should be done by employers to prevent sexual harassment in the workplace?
• Express disapproval to the harasser immediately the first time it happens
• Document the incident in writing the first time it happens noting date, time, and location
• Tell other persons in the office
• Inform the Human Resource Department. Find out the company’s policy on sexual harassment and the complaint procedure to deal with it
• Inform the union representative if there is one
• Take legal action
• Prepare a written policy on sexual harassment that emphasizes zero tolerance
• Educate supervisors and staff about what conduct constitutes sexual harassment so everyone is clear on what behaviour is not appropriate
• Publicise the policy throughout the organization
• Create a communication channel for the reporting of complaints
• Speedily investigate and resolve all complaints
• Communicate to all employees that offenders will be disciplined
• Investigate thoroughly by questioning both the complainant and the alleged harasser giving equal time and respect to both parties
• Confidentiality should be kept as much as possible
• Interview any witnesses and ensure they also maintain confidentiality
• Evaluate all the evidence. If it is inconclusive notify both parties that no action will be taken. If there is evidence to support the allegations immediate discipline the harasser. Inform the victim of the company’s decision
• Write a thorough report. Allow both parties access to the report

Bibliography

• Allen, Audrey, Sexual Harassment in the Workplace, Human Resource Management Association of Jamaica – hrmaj-online.blogspot.com, October 7, 2012.
• Wilson, Nadine, Men, women facing sexual harassment at the workplace, Jamaica Observer, August 25, 2013.
• ILO
• Strengthening State Accountability and Community Action for Ending Gender-Based Violence in the Caribbean, United Nations Entity for Gender Equality and the Empowerment of Women, www.unifemcar.org