A fraudulent will?

All Woman

Dear Mrs Macaulay,

My mother died in 2010. I am the first child. I have four other sisters. Because we were very poor and because I was the eldest, I decided to stick it out with my mother and help her. My mother and I eventually built a shop and then a house. I never left my mother until she died in 2010.

Some weeks ago I got a call from a lady who works at a Peace and Justice Centre. She said one of my sisters had produced a will and asked if I would like to hear the contents. I declined.

My sisters are very sinister. I have never heard of a will, and now suddenly, nine years later, one has appeared.

My mother was in no shape or form to construct a will; she could hardly read or write and her mental condition was deteriorating. Is there a place where the records of a will are kept? I am 110 per cent sure my mother never left a will.

Note that the land in question is captured land; no taxes have been paid on it.

You say that you received a telephone call from someone at the Peace and Justice Centre (who must be a lawyer or an employee of a lawyer). You clearly doubt the authenticity of this purported will, and it is understandable that you feel this way.

Wills can be recorded at the Registrar General's Department. This is, however, not mandatory and I must say that I have only once in my earliest years in the 1970s ever dealt with a will which had been recorded. The majority were not and I do not know if such a practice is still being followed by anyone. You can check there to make assurance doubly sure, but I, however, am going to suggest another course of action for you to enable you to protect all the work you did and the contribution you made over the years.

You were wrong in not asking for a copy of the purported will. So you must retain the services of a lawyer (remember there are legal aid clinics where you can obtain legal services reportedly at a lower cost than a privately retained lawyer) and tell your lawyer everything. This person will and should contact the Peace and Justice offices and obtain a copy of the purported will of your mother.

You must produce for the lawyer specimens of your mother's writings and signatures — search for every document she ever signed and any documents or notes she ever wrote. These are necessary for submission to a handwriting expert who can examine the signature on the purported will and the specimens of her handwritings and signatures and write a report as to whether the signature on the purported will is or is not that of your mother.

You see, you must put yourself in the position where you can challenge and prevent an application for the probate of the purported will. You must act quickly and a search may have to be done to find out if such an application has already been made, so that your lawyer can file the necessary application to arrest the process, whereby you can seek to prove that the purported will is a forgery.

I also note that the property on which you and your mother worked together and built and operated a shop and later built a house is not titled. You who occupied the land with your mother would have to apply for a registered title of the land, and not any of your sisters who did not occupy the land. This also requires you to retain the services of a lawyer to assist you in order to make such an application to obtain a registered title for the land. Without this there would be nothing really in her estate.

From your input in occupying and building the shop and house, it seems to me that you and your mother would have had an equal interest in the property. I cannot say with certainty because your letter does not contain enough facts for me to be certain, but from what you have said, this seems to me to be the correct position. After you have disclosed all the facts, your lawyer should be able to ensure that your share of 50 per cent is secured and your mother's estate would only be the other half. Her half would be shareable equally between all her children, including you. You will therefore be entitled to your 50 per cent plus 10 per cent, totalling 60 per cent, and the remaining 40 per cent would be for your other four sisters in equal shares. All the shares would be of the net value of the estate and not the gross. The value is also of that on the date of your mother's death and not the present day value. Also, all general expenses to ascertain the dimensions of the property and of all taxes and legal costs to secure and obtain the title and orders to administer your mother's estate must be deducted, and only then, from the net value of the estate, can the respective shares be determined and settled.

Remember that once the purported will of your mother is proved to be false, your lawyer must obtain an order (which should have been part of your application) that you are entitled to apply for Letters of Administration and as your mother's administratrix, to administer her estate. This would come with a declaration that you are entitled to 50 per cent of the said property in your own right and your mother's estate to the other 50 per cent which should be distributed equally among you five daughters. Orders should also be obtained in the same matter, that you are entitled to purchase your other sisters' 40 per cent of the net estate and the necessary consequential orders to effect your purchases of their respective net 10 per cent.

So please go and get a lawyer who must first obtain a copy of the purported will and make it clear that any attempt to probate it would be strenuously contested.

Good luck.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.

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