Dear Mrs Macaulay,
My grandfather died intestate and my father is currently living on the property, paying taxes and everything. However, we were told that there was a will made by our great grandmother. She only had one child, which is my grandfather, and we are very suspicious of this supposed will. This will apparently appointed a gentleman as the executor, and he has since died and now his son is claiming executorship and has also probated the will.
There is a claim on the will that my great grandmother had other children who are also related to this new executor. Our genealogical report confirmed that my great grandmother only had one child.
My concern is, if we are paying all the taxes for the property and are currently going through the process of getting a title, how can probating this 'will' affect what we are doing?
What right does he have as an executor? How can we prove that he is an illegitimate executor? Would he have to provide evidence that his father gave him authority to be an executor, or are there other means of him becoming one?
There are so many questions to be settled for this matter to be clarified and just entitlements decided. Your father (with your full participation and/or assistance) will have to secure the services of a good estate law attorney in order to sort this matter out in court proceedings, if indeed the executor's son has definitely obtained probate of the will you say was alleged to have been made by your great grandmother.
Some of the questions which must be sorted out are: Was the property fully and solely owned by your great grandmother? Or was it your great grandfather's and she assumed control of it after his death despite the fact that they had one child, your grandfather? If the latter, did your great grandfather die intestate? How long has your father been in possession of, and paying the property taxes? Regarding the 'will', was it read to your father, the 'family'? Was your father shown the will? And what do you mean that there is a claim on the will that your great grandmother had other children who are purportedly related to the 'executor'?
This last question does not make sense, as there cannot be such a claim in a will. Do you mean that it purports to refer to named persons in it as her children?
It seems to me that you and your father are not certain about what is actually in the will which you say you were told about and which you say has been probated. You and your father must be sure about this. Have you and/or your father checked with the court that such probate has indeed been granted? If not, this is the first thing you and your father must do. You must go to the Supreme Court Registry or parish court office where the probate application was made and ask for a search to be done for it and apply and pay for copies of the probate (which should have the will attached to it) and copies of the application and oath of executor. In this way, matters which you allege but which you do not seem to know as a fact would be clarified. Or, your father and you should retain the services of an estate lawyer who can do the searches and obtain the copies with greater ease.
If what you say is correct and your great grandmother indeed only had one child, and the deceased whose will was probated purports to speak of other children, then your father certainly would have grounds to question the veracity of the will.
There is also the issue of how long your father has been in possession of and had been paying the property taxes and whether he had acquired an adverse title to the property.
You ask what right this person's son has as an executor. Your father should first find out whether he had formerly been appointed as his father's executor pursuant to his father's will. The correct question regarding an executor, in my view, should be, what are the duties and obligations of an executor?
When a person is named as an executor, they have the right to refuse to be so appointed and so can renounce it. If they accept, they must first, before applying for probate, ascertain the family and beneficiaries of the deceased and read the will to them and enable them to examine the document and signature and witness signatures thereon. Then they can apply for probate and try to identify the estate properties. After probate is granted, they should secure the properties and hold them in trust, to first pay all taxes, proved lawful debts, lawyers' fees for doing the probate, and work for settling the gifts to the beneficiaries, and the executors are entitled to six per cent of the value of the estate for their services.
Executors are not owners of the estate property unless they are given such a gift by the testator in the will.
How can you and your father prove that he is an illegitimate executor? As I have said above, you and you dad must retain the services of an really good estate lawyer because if probate was obtained by him, only a court can overturn it and you will have to have the grounds supported by evidence, for example your genealogical report and more, to prove his mala fides (bad faith) and fraud. It would assist you and your dad's position if you can have something which was unquestionably written by your great grandmother for a handwriting expert to examine the signature on the probated will and report whether it was indeed signed by her. Yes, this 'executor' would have to prove that his father appointed him as his executor in his will and that the will was probated and he became the executor of his father's estate upon the grant of that probate.
You and your father must, I repeat, MUST, retain an experienced estate and conveyancing lawyer to deal with this matter for you both. It could be that your father had already become the owner of the property prescriptively wherein the executor cannot do anything to affect your dad's title to the property.
Every single issue must be definitively determined and settled by the court. If you and your dad are serious about your possible entitlement to the property either through inheritance or through adverse possession, you need to get a lawyer to act for him and have his interest protected, and ultimately your interest also.
This is a complex matter involving estate and land law issues, questions about possible fraudulent action by the 'executor', and the veracity of your great grandmother's signature. All are issues which must be definitively dealt with and determined in a court of law.
I wish you and your father the very best. Do not let too much time pass before action is taken.
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 firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
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.