DC's kids left out of his will
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Dear Mrs Macaulay,

My child's father passed away about a year ago. In addition to his regular job where he did not receive death benefits because he was a contract worker, he worked as a district constable (DC) for over 20 years.

He was separated for over 15 years and his wife lived overseas with no contact between them. He has two adult children with the wife. The children migrated with her, and he may have seen them in passing maybe two or three times over all those years. Before the separation they built a house and lived there together. He maintained and lived at this house alone until his death. In his will he left his portion of the house to his two adult children. He was the only one who contributed to the upkeep of the house all those years.

He has several other children. The eldest of these just became an adult and all the assets outside of the house went to this child (vehicle, and I'm assuming monies, among other things). Of all the other minor children, nothing was willed to them. Since their names were not added to his DC pension/survivor benefits, we found that these children will not benefit from his pension because he was not divorced, though he was separated for almost 15 years.

As it is now, it seems that all his benefits will go to the wife who had nothing to do with him for all these years because he failed to do the necessary paperwork to add his other minor children to his documents.

Is there anything that the minor children are entitled to? Can their parents file on behalf of them so that some of the pay-out goes to them? Some of the children are living here in Jamaica and others are overseas. It seems unfair that the wife would now benefit after having nothing to do with him, while his minor children are left out in the cold.

This is a most unfortunate situation which arises too often because of deadbeat fathers who do not make proper provision for the children they keep on producing with women, who are also at fault for permitting this irresponsibility to continue.

You have not stated whether he is registered on the minor children's birth records and certificates as their father. If he was not so registered, then applications for declarations of paternity must be made by their respective mothers now, with supporting witnesses that can vow that they had intimate relationships during which they became pregnant, and when, and that the particular mother gave birth to his child at a named hospital and on what date, and that he was not present when the birth was being reported to the registrar at the hospital and did nothing after this to be registered as the father of each such child, up to his death. The particular child's birth certificate must be taken to the court's office (Family Court for their parish), when they go in to make their application.

If he is registered as the father on any or all of their birth certificates, then applications could be made at once against his estate for provision to be made for such minor children on whose behalf their mothers or guardians act.

The Inheritance (Provision for Family and Dependants) Act 1993 was passed to deal specifically with this sort of situation in relation to minor children or older who were dependents, due to health or other reason, up to his death.

His marital status does not affect his legal responsibility for the care, development and provision of the necessities of life for his children during their minority. The mothers of these children have to act on their behalf and they need to act quickly. As I recall, the Act provides that applications for provisions to be made from the estate of a deceased person should be done within a year following the death. Since you say this father died about a year ago, these mothers must act as urgently as possible. There is always the ability of the Supreme Court in its inherent jurisdiction to extend the time within which an application should be made, if the Act itself does not say so. For the Family Court to be able to do so, the Act must specify that the time can be extended.

The mothers have to act quickly and get themselves a lawyer if they can afford to do so, or just go the Family Court in their parish with their child's or children's original certified copy/copies of their birth certificates and speak to the clerk of court or intake officer, tell them every fact of their child's situation, and mention that they want to make an application for their child, or each of them, if more than one, to be provided for under the Act which I have mentioned above as they are struggling to live a normal life. If the court cannot assist for good reason, then I suggest that they approach the Administrator General's Office, especially the Legal Department, as the administrator general is the statutory officer mandated in law to administer estates when minor children are beneficiaries, though this in general is for intestates' estates. But in circumstances like these, I am certain they would do all they can to assist such children.

An urgent application can be made in the Supreme Court, including one for extension of the time to make it under the said Act and for any injunctive relief as the circumstance warrant, for example to stop any distribution or sale of any estate property, until the court decides what can be done and what is just for adequate provision for the said minor children's needs.

The final course of action would be to obtain the services privately of a lawyer to make the necessary application under the said Act immediately. There must be a search done at the Supreme Court Registry and at the court's office of the parish court for the parish in which the deceased lived and in that in which the estranged wife and widow of the deceased normally resides when in Jamaica, to find out whether probate has been applied for and obtained. Then the names and addresses of the executors will be available for them to be named as the respondents in the documents of the applications for the minor children's provision of maintenance.

I would suggest that each mother works out a list of the necessities and costs for their children. These should be readily available to give to whichever officer or lawyer is working with them to get their children's applications ready for filing in the court and to have them served so that their provision can be resolved.

If these applications are not done, then I am sorry to say, the mothers will only be left with either working very hard to be the sole support of their children, or to go and seek assistance from social services.

I wish these children 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 allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay 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.

Margarette MACAULAY

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