Dear Mrs Macaulay,
My first child's father passed away two months ago. I am married to another man. My ex and I separated six years ago but he still maintained the child. Can I claim his National Insurance Scheme (NIS) benefits for our daughter?
It is sad that your daughter has lost her father, who we can deduce from what you said in your letter, took an interest in her and provided maintenance for her up to his death. I am sure that she is being given the emotional support she needs to deal with her loss.
I want to reply to your enquiry as clearly as I can, so that you will understand your daughter's entitlements and act in her best interests by making the necessary claims on her behalf, and later secure what you obtain for her in safe and productive investments in trust for her future.
You ask if you can make a claim on your daughter's behalf against her deceased father's NIS benefits. Well, I do not wish to be too legally technical, but as practical as I can be, therefore, the short answer is that yes, you can. The National Insurance Act provides for this. Orphans under 18 years of age are a group of persons recognised in the Act as one of the groups for whose benefit the Act was passed to benefit from the pensions of their deceased parent(s).
Your daughter's entitlement to an orphan's pension or grant will depend on the contributions her father had been making during his lifetime.
You must therefore call the NIS office and explain your child's situation and ask what you need to do and what documents you need to provide to support the application you should make on her behalf. Ask how the application should be made — online or in person. If her father was in the public service, then your application would fall under the Widows and Orphans Benefit Fund which also will depend on whether her father contributed to the fund as required for benefits to flow.
I must, however, bring to your attention the fact of your daughter's birth certificate, as her birth records will be of paramount and fundamental importance. This must show that her father's name and particulars appear in her birth records and the certified copy of her birth certificate.
You see, if these do not appear thereon, you must rush and apply for a declaration of her deceased father's paternity in the Family Court of your parish. You can have the clerk of court assist you to make your application as one of urgency, so that it can be heard quickly so that your application(s) on her behalf for benefits under her father's estate can come to her through you. Then, you should make sure that you have someone available (one or two people) who can attest in declarations as to her deceased father's paternity of her, and his continuous provision of her maintenance during his lifetime.
So, I suggest that you contact the NIS office now, as quickly as you can, because you know these things take time.
Then, I also suggest that you also contact the Administrator General's Office with the aim of reporting the death of your daughter's father, if this has not been done already. I suggest this because your daughter is entitled in law to her share of his estate, if it is intestate (if he did not leave a will). The Administrator General must in law represent your daughter's interests to ensure that she gets a share of his estate, both real property and personal property. This is apart from and in addition to the NIS benefit. The Administrator General must take control of such estates to ensure that your daughter's interest is secured and that the office provides from her share, periodic maintenance for her. So you have some work to do for your daughter's benefit.
If he left a will, you should contact the executors of his estate named in his will and provide them with a certified copy of your daughter's birth certificate and evidence (or names of witnesses) that her deceased father did provide her maintenance up to his death, and if she is not mentioned in the will, request that they provide financial support for her from his estate. If they refuse, then you must contact a lawyer to make an application for such financial provision for her under the provisions of the Inheritance (Provision for Family and Dependants) Act 1993.
Let me conclude, and so that I have not confused you, I am telling you to go to or contact the NIS office by phone for them to tell you how to make the application for your child to get her orphan's pension or grant. The officers will assist you and give you advice and information about what you need to provide to them and by checking her father's records, whether there are benefits that your daughter can benefit from. Do this immediately.
Then the next thing you should do is to contact the Administrator General's Office as I stated above. They would make enquiries of the deceased father's nearest and dearest and ascertain what his estate situation is. It would hasten their process if you can give them a certified copy of his death certificate and your daughter's birth certificate. They would probably also check court records to ascertain if any probate application of her deceased father's will is made.
If it turns out that he left a will, then you should act as I suggest above.
Do not delay to contact these offices — you must do so to ensure that your daughter obtains the benefits from her deceased father to which she is entitled pursuant to the laws of Jamaica.
I wish you and your daughter the very best, and success.
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.