Issues with our grandfather's will

Sunday, November 08, 2009 2:38 AM

All Woman

By Margarette Macaulay

Monday, June 29, 2009

Margarette Macaulay

Dear Mrs Macaulay, I know that this might not be your area of expertise but I think you might be able to help my family and me. In the 1980s my grandfather and grandmother were named in a will as having inherited a few parcels of land from an elderly woman for whom they provided care. The will was probated and my grandfather and one of my uncles were there for the reading of the will. This was about 1985-86.
Unfortunately they never secured a copy of the probated will. Now my grandparents are up in age and a will is to be written for them so that the properties can be shared among their children. My mother and aunts have tried unsuccessfully, on a number of occasions, to get a copy of the will from the Supreme Court but because they do not have a reference number, the search is proving unsuccessful. Please note that the properties have been surveyed recently and my grandparents have been paying taxes on them since the 80s. However, they have been paid in the name of the deceased. The lawyer who handled the case has since passed on and the documents concerning the will have been destroyed. We have tried to get the information from members of the dead woman's family but, for some reason, they have refused to help. Is there any other avenue that we can explore in order to obtain a copy of this will? My grandmother is very ill so any assistance you can provide will be greatly appreciated.

I do not really have a specialty. I am catholic in my involvement in the law, though I feel more passionately about some areas of the law than I do about others.

Anyway, thank you for submitting your family's problem to me. I shall do what I can to try and assist as best as I can.

The problem as I understand it is basically that the executor(s) of the deceased's estate has or have failed and neglected to wind up the estate by transferring the bequest made in the probated will to your grandfather and grandmother.

You say that your grandfather was present at the reading of the will with an uncle of yours, in about 1985 - 86.

I understand that they themselves heard exactly what lands the bequest related to and you say that your grandparents had been paying property taxes on the parcel of land since 1980s, which still remains in the name of the deceased.

You also say the will was probated (obviously after the reading). You have not made any mention of the executor(s) named in the will, to whom the grant of probate was made. Your grandfather and uncle who were present at the reading must have heard and learnt who the executor(s) was or were - indeed are, since he or they have clearly not concluded their task as executor(s).

Did your grandparents or anyone else in the family ever contact the executor(s)? If so, what was their explanation for not transferring the property as provided in the will?
Is he/she or they still alive? If so, the executor(s) should have had at least one copy of the probate with the will attached thereto after the grant. What exactly does the executor say?

You see, an executor is a trustee of the estate properties with all the attendant legal obligations which must be discharged by trustees in law. I do not know that it was necessarily a member of the deceased's family who was named and appointed the executor on the grant of probate so the contact of the deceased's family members may have been a hopeful but clearly hopeless move. It is not surprising that they were unhelpful, as surely they would want to hold on to the land.

What you want to do is to contact the executor(s) who have obligations under the law to take in the estate properties, hold them in trust and on transmission and then effect the necessary transfers of the bequests of land to the respective beneficiaries.

As to your searches in the Supreme Court, you clearly have the name of the deceased and the approximate year when probate was applied for and perhaps granted.
The suit number could be found with the name of the deceased's estate by a diligent search of the Suit Books for the years around the time you believe probate was applied for. The searches will be long and tedious and should encompass about two years before and two years after the year your family actually believes it was applied for. The Suit Books are quite large and ought to still be available. Once you find the entry of the application under the name of the deceased's estate, you will have the suit number and the search for the file can then commence.
Apply to the Registrar of the Supreme Court for her assistance in having the Probate Suit Books made available to you, if you encounter any problems. So this is one way.

The other which occurs to me depends on whether your grandparents took actual possession of the land. You say they had been paying the property taxes but this does not necessarily mean that they took and kept actual possession. If they did, then they can apply for a registered title based on their possession of the land from the 1980s. Since their possession is clearly not adverse to the deceased owner's interest, as it is based on a bequest to them, I would advise them to apply to the court for a declaration that they are, by virtue of all you said and of the failure of the executor(s) to transfer the lands to them, entitled to the land and are the owners of it and entitled to be registered as the legal proprietors thereof. It would assist the application of course, if they have a copy of the probate and will, but the fact that they do not will not defeat their application for the declaration as long as their evidence in support is credible and it seems to me to be so.

Well, I trust that I have assisted your family to see avenues to pursue. Please ensure that your grandparents make their will and in it refer to this land to which they are entitled in expectation of the winding up of the deceased's estate or on a registration following a court deduction of their ownership. They should therein direct what should happen to it after the legal estate has passed to them.

Margarette May Macaulay is an attorney-at-law and a Women's and Children's Rights Advocate. Send questions and comments via email to allwoman@jamaicaobserver.com.

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