I need to secure his outside children's welfare

By Margarette Macaulay

Friday, August 16, 2013

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Dear Mrs Macaulay,

I have two kids ages eight and 15. Their father owns property and the two kids and I have been living there since 2011. Their father is ill. He is living overseas, but he says the property belongs to me and his two kids. However, he is married. He has not made a will.

I spoke to him about making a will to secure the kids' futures or to get my name on the property. None of this has been done as yet.

Please advise me about what I can do so that we are secure in case anything happens to him. His wife does not have any children for him, but, he has another property which he says he has given to her.

I would also like to know if he should pass on, whether she can claim the property that the children and I are living on.

You have not said whether your children's father's name and particulars are on their birth certificates pursuant to his declaration or should I say, his acceptance and acknowledgement that he is their father.

This is very important if he fails to fulfil his promise to effect the gift of the house to you and them before his death. So if he is not registered as their father on their birth certificates, you must apply for declarations of paternity to be made as quickly as possible.

Your legal options

Go to the Family Court for your parish and make the application for the declarations and at the same time, apply for service on him to be effected by substituted service by means of 'acknowledged receipt courier delivery' to him. You must, if you need to do these applications, tell him beforehand and explain that this is necessary if his children are to have any protection under the law if he dies before he secures the provision he has promised them.

By this means they will be assured their share in his estate properties in Jamaica if he still did not make a will under the Intestates' Estates and Property Charges Act.

If he did not, this would mean that you would have to inform the Administrator General's Department of his death, on his death, and that he was the father of your two children. You would have to give them the wife's name and address, so that they could make contact with her and inform her that, by law, they have to deal with his estate at least here in Jamaica because of his minor children.

You can also do this if he dies before you succeed in getting the declarations of paternity, because you can apply for these even after his death. But it is easier to do that while he is still alive because he can himself inform the court that he is indeed their father and the declarations can be made by consent.

Since he is abroad and ill, you must act quickly and remember the substituted service order you ought to get so things can move quickly. Then all he will need to do is just send a notarised, simple affidavit of acknowledgement of the fact that he is the father of the children, and he must in it name each child with their dates of birth and add that he consents to the declarations being made. This document should bear the same heading as the one you would have sent to him, so that it can be identified as belonging to your proceedings in the court.

Ask the clerk of courts to give you in writing the instructions he will need about doing the affidavit before a notary public and the certificate which is necessary so that it can be used by the court. If he does it before the Jamaican consul, this will not be necessary.

Anyway, it will definitely be so much better if in addition to getting the declarations of paternity -- providing he does not appear on the children's birth certificates -- that he signs a transfer of the property to you and the children, in which it is stated that the consideration for the transfer is a gift from him to you three.

I trust that there is no mortgage on the property, as this would complicate the part of the gift to the children who are minors. The consent of the mortgage institution will be required and they generally do not give it to minor children. If there is no mortgage, then this issue will not arise.

You should know, however, that if it is free and clear, the transfer can go through, but the Registrar of Titles will put her caveat on it to protect the children's interests until they attain their majority at 18 years of age.

I really think you ought to try to convince your children's father to do the transfer. You may suggest that if he sends you a copy of his Duplicate Certificate of Title, you can have the transfer and declarations of value, and of the fact that it is the home of his children and yourself prepared here by a lawyer and sent to him so that he just needs to have them signed.

Then you can have the transfer registered here. You have to ensure that you have the funds needed to pay taxes, stamp duty and registration fees and any legal fees. Once you have the transfer and declarations duly signed and registered, you and your children will have nothing to be worried about in this regard.

If he does not do the transfer and he dies, yes, the wife can claim the property. But remember what I said about the declarations of paternity if they are necessary, and you reporting his death and the children's existence.

You cannot drag your feet. You have to act quickly so that their interests can be protected, preserved and realised.

You did not say whether he is providing maintenance, apart from shelter.

If he is doing so and he dies with or without a will, or if he makes no provision for them in the will, you can apply to the court where application is made for the administration of his estate, for financial provision for the children under the Inheritance (Provision for Family and Dependents) Act.

The grounds of the application must be that under intestacy or by way of his will, no provision or insufficient provision exists for the maintenance of the children. If such an order is made, it can go on until they complete their undergraduate qualifications.

Try to get him to sign the transfer and necessary declarations and register it and get that secured for you and the children, because the wife may try to claim all his estate, even though she cannot succeed if you act quickly as I have suggested to you.

Good luck.

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.


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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