Dear Mrs Macaulay,
My grandfather wishes to give his grandchild permission to build on his land. He’s not in the best of health and does not yet have a will. However, his grandchild is currently constructing a staircase, which two of his children object to, so he wants to put it in writing. What can be done in the absence of a will?
I have read your letter, but I must admit that I am not sure whether your grandfather merely wishes to permit his grandchild to build on a part of his land while retaining ownership of the land, or whether the grandfather wishes to give a portion of his land to the grandchild so that this child could build on it and would own it. Quite frankly, I do not see what the staircase has to do with the issue of the grandfather wanting to either give his grandchild a piece of his property or merely permit him to build on a portion of his land. You also state that the grandfather is not in good health, that he does not have a will and yet he wishes to put the ‘gift’ to his grandchild in writing. This latter is a very good thing.
The first thing I must suggest is that action has to be taken quickly to ensure that your grandfather’s intention is achieved properly. The services of a lawyer must be obtained so that the requisite document can be prepared and properly executed in order to ensure its legality. This is absolutely necessary in the circumstances of the two children objecting to their father doing what he wants with a portion of his property — not theirs — and during his lifetime. What do you think they would do after his death if his intention is not made legally sound in a document?
Your grandfather can, of course, do his will, and should, so that every family member would know his directions, and as long as the will adheres to all the legal requirements, it would have to be followed by the executor(s), despite the feelings of the two objecting children. This could be done very quickly in a day or two and would assist in ensuring that there is no property dispute after his death. Such disputes can be very vicious and bitter and should be avoided at all costs, if possible, and it is possible from what you have said about your grandfather wanting to put his intentions in writing. His directions must be completely clear in the wording of the will and his grandchild fully and correctly identified and so must all the gifts, and bequests. Portions of land must be specifically identified and the person on whom it should be settled.
Then, apart from a will, though I strongly suggest that he does make his will, your grandfather can, of course, effect his gift by having a deed of gift prepared in line with his intention, and properly executed. The deed must clearly identify his grandchild, identify the portion of land clearly and specifically, and state in clear terms whether it is a gift for love and affection or some other term. It must also state whether the gift is to the grandchild absolutely and for his/her sole use, occupation, and possession. This deed can also be done in a few days and properly executed. I mention this as you stated that your grandfather is not in good health, in which case these things have to be done as quickly as possible so that he can relax knowing that his intentions would be realised after his death.
As you can see, both the will and deed of gift must contain specific information and descriptions. They must also follow the legal requirements as provided in law in order to be legally enforceable. This is why he needs the services of a lawyer to ensure that the legal requirements and factual statements are all properly included in whichever document he decides to use to do what he wishes for his grandchild.
I trust that he will act before it is too late to legally protect his gift to his grandchild and save a lot of familial upsets.
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.