All Woman

Daughter wants to force stepmom off dead dad's property

By Margarette MACAULAY

Monday, April 11, 2011    

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Dear Mrs Macaulay,

I am writing on behalf of my aunt who is in her 70s. She was living with a man for over 20 years and bore him two sons. He died suddenly 11 years ago. He had two children outside of that union. After his death, his daughter moved into the house and since then my aunt can't live in peace. The daughter and her sons are trying to put my aunt out, saying she does not belong there.

He did not leave a will. Please tell me what she is entitled to.

Firstly, your aunt is the stepmother of this woman and the step-grandmother of her sons. She can therefore, if their conduct is such as to amount to abuse, apply for a protection order and an occupation order against them at the family court in your parish. If there is none, she can go to the Resident Magistrate's Court. The protection order will order them to stop abusing, harassing and attacking, and from behaving in any way which causes her annoyance. The occupation order will put them out of house, so she will be left in peace.

I think that the application should be made ex parte, because from the sound of things, if they are served with the application while they are still in the house, they could do something to your aunt. So, help her make the application ex parte, get the orders which will be served on them by the police, with a summons for them to appear in court on another date when the judge will hear from both sides.

These are legal protective steps that your aunt can take and which will give her some peace, to enable her to sort out her late common-law partner's estate. It is apparent that this has not been done even though he died 11 years ago.

The deceased did not leave a will, so he died intestate. This being so, his estate must be administered under the Intestates' Estates and Property Charges Act. Your aunt should first apply for a declaration that she was the deceased's spouse for over 20 years. She must support the application with her affidavit of the facts of their status and that they were each single during the period they lived together as if they were man and wife. Her 20 years clearly is a multiple by four of the required period of five years' cohabitation immediately preceding the date of death. So she will state from when they started cohabiting as if they were in law, man and wife, and that they lived that way up until the date of his death. She can also say that their neighbours and friends accepted and treated them as a couple.

She will then say that he died without leaving a will and say what property he had in his estate when he died, and that she continued to live in their home and still lives there and that his estate was never administered and that she wishes to do so now. She should also get about two other persons, say one neighbour and one of his friends, to also do affidavits in support attesting to the fact that they were a couple living as man and wife for so and so years.

Once she gets the declaration, she can apply for Letters of Administration to administer his estate. It will cost money. How much will depend on the value of the property (if this is all he left) at the time of his death. The Stamp Commissioner's office will fix the estate duty based on their assessed value of it at that date, or they can accept a credible valuation by a reputable valuator. Interest will be added to the duty fixed for the years between a year after the death and the date of the receipt for payment on a fixed date. Not to worry, all payments she makes must be pro-rated to be paid or deducted from other beneficiaries' interests.

Now to the nitty gritty. The daughter is a beneficiary. So are her sons, but their interest in the estate property is not as great as hers. She has to share the issues' share with your aunt's sons and her other sibling. In any event, she must be able to legally prove that the deceased was her father, before she can claim any interest. She may need to get a declaration of paternity, if he did not put his name and particulars in her birth certificate. The same applies with her sibling. I trust that as the deceased was cohabiting with your aunt all those years, that her sons' birth entries were completed with his name and particulars as their father. If not, they will also have to apply for declarations of paternity. They can do this at the same time your aunt files her application for a declaration that she was his spouse and that she is therefore his widow.

Once she gets the Letters of Administration, she can (if there is a registered title) apply to and be registered on the title as the proprietor on transmission -- this means the she as administratrix of the estate is in charge to protect it for herself (as she is also the largest beneficiary) and the other beneficiaries -- this is all his children, proven in law to be his. She is responsible for distributing the estate.

As the spouse, she gets all the personal chattels, plus $10,000 or a sum equal to 10 per cent of the net value of the whole estate and she is not to contribute to the estate duty and costs. She is also entitled to 10 per cent interest per year on the $10,000 or the 10 per cent sum. This interest will run until the money which she is thus due is paid.

Then, assuming that the children prove paternity as the law requires, then as to the rest of the estate, after she has gotten the above, she would be entitled to half and then all the children would have the remaining half to be shared among them.

You see now why I said that she had more interest in the house than this grasping step-daughter. Only such a person would go into a person's home and make that person's life a misery by her abusive conduct, and an older person at that. She is clearly not giving her sons the proper example of acceptable conduct.

Please help your aunt to protect herself from these interlopers, as they have no right to do what they are doing. Let her act quickly. They are clearly shortening your aunt's life.

Good luck to you both.

Margarette May Macaulay is an attorney-at-law and a 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. We regret we 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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