A woman's rights after her married companion's death

Margarette MACAULAY

Monday, March 18, 2019

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Dear Mrs Macaulay,

A woman had been living with a married man for 29 years, and he passed two months ago. He left no will, and his wife, who lived in New York, died two years ago. This man had several properties and several bank accounts. How does this woman proceed?

My answer is that she should retain the services of a good lawyer, experienced with the application of the Property (Rights of Spouses) Act. She must, however, remember that such a lawyer cannot perform miracles and it would only be a miracle which would make this woman the deceased man's spouse under the law on the facts you have presented.

Let me, however, go over the facts you have given to me. You did not say whether his wife's death occurred in New York or Jamaica, or whether the man and his wife had any children, or if he and the woman had any separately.

The fact of children is relevant because all the man's children would be equal beneficiaries of his entire estate. The fact that his lawful wife died two years before him means that the legal representatives of his wife's estate have no, and can make no claim against his estate. The deceased wife is out of the picture.

However, if the woman he was living with had any children with him, they would be lawful beneficiaries of his estate, and so would the children he had with his wife. All the children would in law be entitled to share equally in his estate, which you say comprise several real properties and several bank accounts, whether they were born in wedlock or not.

The Status of Children Act made all children, whether born in wedlock or not, equal in status with each other vis-a-vis their father, in his obligation to provide for them and after the father's death, gives them equal claim to his estate. They would be the only beneficiaries of his entire estate. So if this woman had the man's children, she should ensure that they get their full entitlement.

If any children are under 18, then the Administrator General must in law administer the estate. So the woman should report the death to that office and fill in the names of all the children, their dates of birth and all other information sought in the form, which she would provide to that office which will be responsible for providing for the minor children.

Since the man died intestate, the woman who lived with him for so long is in the best position to know all about his properties, real and personal. If he had put her name on any of his bank accounts, she can use monies therefrom to secure the properties — for example, to pay the property taxes, or better yet, she can ask his bank manager if the bank would advance monies for the purpose of keeping the properties safe by paying the taxes and any and all utility bills.

If her name is on any bank account as a joint holder, she would be entitled to what is contained in that account.

If she is not, I hope that if there are children of hers, or his, or both sets, that they can agree that she and one of them can apply for Letters of Administration and to be the administrators of his estate. If she can do so, then they can retain a lawyer to assist them with the application. Or they can agree that she can apply to be the sole administratrix of the estate.

If there are children, the matter will be very straightforward to take steps to administer the estate and settle it on the lawful beneficiaries — that is the children. The woman herself cannot benefit from the estate as she is not and cannot be the deceased's spouse in law or in fact. They did not live together as if they were man and wife continuously for five years while both were single persons. In fact, they only so lived for two years after the wife's death and up to his death.

If there are no children, then the woman should retain a lawyer as I had suggested, to apply to the Supreme Court for orders, if she had been maintained by the deceased man during their 29 years together, for her to continue to be maintained from the estate, pursuant to law, as a dependent of the deceased and as she is not in a position to maintain herself. It is the Family and Dependants Act which may apply. This is why she should get a lawyer to whom she can give very detailed instructions to decide how best she can be assisted and what exactly should be applied for.

An application could be made for orders that she should apply for the Letters of Administration and for administering the estate, and she would be entitled to obtain some of the value of the estate. Or, under the Supreme Court's inherent powers, orders could be obtained for her to benefit from the estate for the years she cared for the deceased man, attended to his needs, and ran his household.

I cannot end my response without highlighting the fact that women have to stop putting themselves in such precarious situations for relationships with men who do not consider their safety and security. To live with a woman for 29 years and not provide for her future is almost a crime. Then for her to simply accept it and just go on living with him, was her cutting off her nose to spite her face. She should have insisted that he do right by her. He could have easily got a divorce on the grounds of the irretrievable breakdown of his marriage, and made this woman his wife. Failing this, at least as a divorced man and single woman, living as man and wife, she would be adjudged to be his spouse following his death and thereby as his common-law spouse, on his intestacy, be the main beneficiary of his estate.

Anyway, I hope I have clarified the position for the woman and that she understands her position. I hope she can continue to live in the home they shared together and can do so for the requisite time to be entitled to claim the legal interest therein by way of adverse possession, but better still, that she obtains beneficial orders from the Supreme Court.

All the best wishes to her.

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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