More questions than answers after dad's secret marriage

Margarette Macaulay

Monday, July 23, 2018

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Dear Mrs Macaulay,

I am writing to get some clarity on the process of probating a will. My father passed in 2013 and that's when we found out that he had remarried. My mother, who was separated from my father, was not served with any divorce papers, but in the decree that we found it states that my mother was served the petition at an address that she had not lived for over 50 years. We were also given a will.

It has been five years since his passing and I wanted to find out if there is a statute of limitation on probating a will and if so, if we can sue this so-called wife for negligence. We are his children and we knew that if he died the house would be ours. We also found out that my dad built this woman a property in her hometown.

You say that it has been five years since your father's death, and ask about a statutory limitation period for the probate of a will. This I deduce is because your father's “widow” has not yet applied for probate, assuming that she was therein appointed as his executrix.

In relation to the purported service of divorce papers on your mother, if what you say is true, then the divorce decree which was granted was done as a result of deceit and fraud and is null and void. Your mother could have and may still be able to apply for the decree nisi be declared null and void and that all subsequent decrees and orders be discharged.

Next, that is no limitation provision for the application for the probate of a will. However, if an application is not made and the estate duties/taxes are not paid within a year of the death, interest is imposed by the government tax offices on the value of the estate as must be disclosed in a revenue affidavit which must be prepared and submitted to the Stamp Commissioner's Office with all necessary documents in support. The said interest is applicable for each subsequent year thereafter until the executors conclude this part of their administration of the estate.

You ask if you can sue the “widow” for negligence. All beneficiaries have the legal right to apply to the court for orders to force the executors named in a will to perform their duties and if their non-performance of their duties has caused loss or additional expenses to the estate, and depreciated the beneficiaries' interests, they can ask for an order that the executors be personally liable for these losses/additional expenses.

You, your siblings and your mother need the services of a good estate and family law lawyer to fully advise and assist you all to take the proper legal steps in order to obtain justice and satisfaction about your father's estate. All the best wishes to you all.

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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