Click here to print page

Is my father's will valid?

Margarette Macaulay

Monday, September 18, 2017

 

Dear Mrs Macaulay,

My father and his sister bought a house as joint tenants. His sister (my aunt) died, making him the sole proprietor of the property. My father died when I was 16 years old. After his death I was banned from going to the house by my stepmother. Mind you, my father and I had a very close relationship as I was the only child he had. I did not see why I could not go back to the house and because of this, my mother went to the Administrator General's Office to make them aware of what was happening. They called my stepmother and told her to provide relevant documents, which she did. There was a will and a marriage certificate which we photocopied, and to my surprise, the will stated that he had left the house for my stepmother and her two children living overseas. There was no mention of my name on it. In 2013 my stepmother died, and shortly afterwards I broke the lock of the premises and moved in. There were tenants living there at the time and my stepmother's daughter was collecting rent while living abroad. In 2014, one of the tenants moved out and I got a new tenant. I then got a letter from the lawyer of my stepmother's daughter stating that I must vacate the premises, as she was the owner of the estate. I got a lawyer who said they couldn't remove me from the premises until the Supreme Court proved the validity of my father's will. In January this year I got a letter from the lawyer of the “owner” stating that I'm been sued for loss and damage and the recovery of her premises. The letter stated that the will wasn't fully probated because the executor died intestate. I went to the Titles Office and was told that they were trying to transfer the title in my stepmom's name, but it didn't go through. I would appreciate your advice.

 

The first advice I must give you in the circumstances you have related is that you ought to continue with the services of your lawyer, who had in 2014 given you good advice, or get another who is just as good. You see, your father's will should have been proved and probate obtained before your stepmother and her two children could claim ownership of the premises.

In proving your father's will, one of the main things to be proved is whether the signature was in fact his, and in the circumstances of your close relationship and the fact that you are not named as a beneficiary at all, it would be a good idea to have a handwriting expert examine the signature with other written samples of your father's handwriting and write a report giving his or her opinion.

Clearly there have been reasons why probate seemingly was not obtained or why there were problems about it being granted. Then there is the further complication of your stepmother's death, so that her entitlement (if any) would be part of her estate which must be legally administered by Letters of Administration being obtained upon an application to the court, as she seems to have died intestate.

By the way, you have not said who is or are the executor(s) named in your father's will. I assume it is not your stepmother or either of her children. The issue of your father's signature is a fundamental question which must be dealt with by the court on an application by you disputing that the will is his, because the signature on it is a forgery. The issue of whether or not the alleged will is your father's can then be determined, and if the handwriting expert's opinion supports your claim, you would succeed.

If it is decided that it was not your father's signature, then someone would have been attempting to act fraudulently and the Attesting Witnesses of it would have hard questions to answer, if they can be found.

If it is the case that his signature was forged, then that would be the end of the will being an issue, and your father would then have died intestate and the Intestate (Estates and Property Changes ) Act would apply. Under this Act, his widow and his child (since you are the sole child and assuming that he did not adopt his widow's children) would share his estate between you. This then would be the only way your stepmother's children would get anything from the property, and only if it is clearly proved that their mother was not a part of the fraud. If she did it, knew, or was a part of it, then neither she nor her estate can benefit from her fraud.

As to the letter written by the daughter's lawyer saying that you have been sued for loss and damages and recovery of “her premises”, that refers to only one daughter. Yet two are purportedly the alleged beneficiaries in the purported will!

So though you do not have to answer such a letter, you ought to take it to your lawyer, as I have stated, so that you both can arrange your next steps – either to wait for you to be served or for you to file your own application so that your father's will can be properly proved, and if not, let the law take its course.

You do need a lawyer to assist you to unravel the entire matter, but first your father's alleged will should be dealt with. Based on the finding about the will, then your lawyer can best know what your position is, which can be that you are in fact entitled to a share of your father's estate, or that you are not. If you are not entitled because it is in fact your father's signature and therefore his will, then you will have to account to the estate for rentals you have collected and expenses therefrom, as the estate would have to be distributed according to his will, if indeed it is proved to be his. You cannot go on with this on your own, so please go back to your lawyer or get another.

Best wishes.

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.