Dear Mrs Macaulay,
My father and mother were married for 35 years. They separated when my father brought another woman into their marital home, who then had a child. That was 14 years ago. My mother still lives on my father's property, even though they were separated. My father died last year, and upon passing he left a will. In the will he left my brother and I (the only two children of the marriage) in charge of his property. The five of us — my mom and her two children plus this woman and her child — were named as beneficiaries, with equal shares in the land. It was also stated in the will that the mother and child should continue living on the property for the duration of their lives.
The woman has all his papers for the property and she is now causing a lot of problems because my father left her out of the property sharing. I cannot collect money from the tenants because she is showing the tenants papers for the property saying that she is the person in charge. I have had a Justice of the Peace (JP) write to the tenants and tell them that only my brother and I are in charge of the property, but the tenants are saying that they are confused and don't know who to pay.
What can I do to get her to hand over the papers to me and to stop interfering with the tenants? She also has four other children living on the property who are not my father's children. My mother, who is my father's wife, can't live in peace because the woman and her children curse her every day, saying that she should leave the property. I need some advice on what to do.
I understand your difficulty, but if indeed you and your brother are the named executors of your father's will, you ought to have secured not only his documents, and especially those related to his properties and estate, but also the properties themselves, and ensured that no interlopers or otherwise could act contrary to yours and your brother's obligations and rights as named executors. In other words, you had the right to take possession of all your father's documents and the obligation to do so. As a result of you both being so named, you have the locus standi to take legal action against anyone who interfered or interferes with this.
I note that you had a JP write to the tenants who through the unlawful interference of the woman, have been paying their rentals to her instead of to you. In the discharge of your duties, you and your brother must retain the services of a lawyer to apply for probate and file a claim against the woman to pay over, with interest, all the rentals collected by her, and for injunctions to restrain her from any interference and collections in the future, and also restraining her and her children from harassing and abusing your mother. You also need an order for recovery of possession of the parts of the property occupied by her four other children who seem to have been brought there by their mother without any right or the consent of your father before his death, or that of your mother or you and your brother. They have no right to be there.
I refer to your mother because she in fact has a 50 per cent interest in the property which was and is her family home. She could have applied for a declaration of her entitlement in the property at the time she and your father separated, and she could have had an order for partition and sale with a first option to your father to purchase her share. So your father's will can be challenged on the basis that he sought to ignore your mother's entitlement in it. This extent and the efficacy of his will over the entire interest in the property, rather than his actual one-half interest therein, is a matter which may need to be ensured by a decision of a court. As a result, your mother needs her own attorney-at-law to secure her interest against the estate. In any such legal action by your mother, you and your brother would be the defendants and executors.
What I'm saying is that in fact, only 50 per cent of your father's property can be distributed pursuant to his will to his beneficiaries. His direction therein for the woman and her child to live in the premises for the rest of their lives cannot be upheld because of your mother's 50 per cent share. And in addition to this share, she is also entitled to her one-fifth equal share of your father's estate.
You really need the services of an attorney-at-law for the estate, and if your father did not leave any or much savings, then you and your brother as executors must collect the rent and use such funds to pay for the expenses for the probate process and for the settling of the estate. Remember, your mother's half share is not a part of this estate sharing.
You should not have had a JP write to the tenants — the proper person should have been a lawyer who can follow up with legal action if the tenants seek to use the confusion they claim they are suffering for not paying their rent.
My advice is that you and your brother should get a lawyer as quickly as possible. Secondly, your mother must also get her own lawyer, as there will be conflict if the lawyer who is acting for the execution of the estate also acts on her behalf. Her lawyer must be separate to protect her interests and to obtain her 50 per cent legal entitlement, separate and apart from her entitlement under the will.
As executors, you and your brother are responsible for the assets of your father's estate once you have not renounced his appointment of you both as his executors, and to discharge your duties as such properly. You must act according to law and therefore need the services of an attorney to assist you.
You really ought to have applied for your father's will to be probated with the court within one year of his death. I hope you are within this time period, otherwise the estate may need to pay interest to the tax department for the periods beyond the year.
I trust you understand all I have explained.
All the very best.
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.