DEAR MRS MACAULAY, My mother was in a common-law relationship from 2001 up to 2020 when my stepfather died of natural causes. My mother has four children to include myself, who are all adults. I am 33 years old now — at the time my mother went to live with my stepfather I was 12 and my other siblings were ages 16, eight and six. They did not have any children together and to best of our knowledge my stepfather does not have any other children.

He was previously married and jointly purchased a house with his ex-wife sometime in 1992. The mortgage was paid through salary deduction as my stepfather was a public sector worker. The ex-wife left Jamaica in 1995. My stepfather filed for divorce in 1999, which was finalised in 2000. The ex-wife remarried and returned to Jamaica in 2015, but did not visit the property. My mother and stepfather lived at the property undisturbed and did extensive renovations during the relationship. My stepfather as well myself and my mother paid the taxes and maintained the property and its upkeep.

In October 2021 my mother was served with a notice by the ex-wife to leave the property, but my mother's lawyer informed the ex-wife that she would have been extinct since 2007. However, my mother had filed in the Supreme Court to be declared the legal spouse of my stepfather in March 2021 as there were rumours from his family members that they would evict my mother from the property. The Supreme Court matter is pending.

Prior to my stepfather's death, he sought legal advice to will the property to my mother and her children, but a lawyer informed him that he could not make a will with a property that is jointly owned. He told people, including his family, that the house belongs to my mother and no one should interfere with her when he dies.

In recent times there have been rumours that my stepfather is the father of a child who was born in 2006, and that he also has an adult son in the United States. What entitlement would these children have to my stepfather's estate since he did not leave a will? What about my mother's financial investment in the property? Also, my mother paid all the funeral expenses. Will the administrator general give the property to these children?

It is clear that your mother lived with the deceased, who at the time she commenced living with him, was a divorcé, and who consequently fell within the definitions of a "single man" in both the Property (Rights of Spouses) Act and the Intestates' Estates and Property Charges Act. You and your siblings, all minors at the commencement of their cohabitation, became children of their union and grew up with the deceased as your stepfather in fact. Though neither the deceased nor your mother applied for a declaration to either the Family Court or the Supreme Court after their cohabitation had passed the five-year mark during his lifetime, it is apparent that your mother and the deceased were common-law spouses in fact, and would have been so recognised in law. I am very pleased therefore that as you said, your mother has filed an application in the Supreme Court for declarations that she and the deceased were single persons and that they had cohabited for five years and continued to do so for 19 years as if the were in law man and wife and that the applicant, your mother, was the common-law spouse of the deceased. You say the application is still pending in the Supreme Court and I hope that it will be concluded soon and no doubt successfully. This would mean that consequently you and your siblings were children of their common-law union.

The issue of the property has to be sorted out and it seems that your mother has a conscientious lawyer who is acting to protect her interests. It would be advisable in the circumstances of your mother having been served with a notice to quit, which I sense that she ignored, that she should put a caveat on the title to protect her interest (now) of the value of hers and your contribution to the costs of the extensive renovations done to the premises. The caveat should be used to prevent any sale and/or other dealing with the property until the court determines the respective interests therein.

I assume that your mother's lawyer has already also filed an application in the Supreme Court for a declaration that the ex-wife's interest in the property had been extinguished because she had abandoned her interest in it. The Partition Act and Limitation of Actions Act and authorities would assist in this regard. The clear conclusion from what you've said is that the ex-wife had no interest or contribution in the property.

It is my view that your mother's application for the abandonment of the ex-wife of her interest will have a very strong chance of success. Your mother should stand her ground and file the applications I have mentioned and defeat, what in my view, is the dubious claim of the ex-wife to ownership of the property. In any event, your mother and yourself have strong and good claims to the additional value which the renovations caused to the market value of the property. What you said that he told people is evidence of his intent, and if any of these people agree to relate what he told them directly, this would be good supporting evidence in your mother's application regarding the property.

I am sorry that when your stepfather sought legal advice he was only informed that he could not make a will about a jointly owned property simpliciter. This is correct, but he should have been told much more. Firstly, he could have sought to sever the joint tenancy which would then make the holding a tenancy-in-common and at that time the proportional interests of his and his ex-wife's interests could be changed if the 50/50 share should not apply and this is approved. He should also have been told that he could apply for the declaration and consequential orders that his ex-wife no longer had any interest in the property as she had abandoned her interest in it. The most important consequential order of such an application would have had to be that the Registrar of Titles would cancel the joint ownership title and issue it, or a new one, in his sole name or in his name and your mother as joint tenants. I say this to say, the property situation could have been resolved during his lifetime.

Regarding your specific questions, the possible children would first have to obtain a declaration of paternity, if your stepfather's name and particulars do not appear in their birth records and birth certificates. If he is there or they obtain paternity declarations from a court of law upon their applications, then if the joint tenancy does not hold, they would have their statutory share, after that of the spouse, pursuant to the Intestates' Estates and Property Charges Act. If the joint tenancy holds for the benefit of the ex-wife, then they will get nothing, unless there are other assets in the estate apart from the house property. The minor child born in 2006 may be able, if proved to be his child, to apply for financial support under the Inheritance (Provision for Family and Dependents) Act 1993, if indeed there is an estate from which the child can obtain financial support for his necessities of life and development.

I have referred to your mother's investment in the property above, and to even your own contributions. I hope that you and your mother succeed in obtaining recompense for the monies she and you invested in the property, but she must make application to the court for such a declaration and for the necessary orders to enable her to actually obtain the monies determined to be hers. This should be only one of her applications as she must complete her application for the declaration of her status as your stepfather's common-law spouse, and the other that the ex-wife is not entitled to obtain the property as a joint tenant. The order claim which should be included with this application should be that the title be rectified, upon the making of the declaration in her favour of her spousal status, to be her deceased spouse's administrator of his estate, and for its settlement on her as his widow common-law spouse, and such other beneficiaries as are so recognised by the judge. In addition, a specific order must he applied for and made for the payment to your mother and to you of the value fixed by the judge as adequate for your financial investments in the works done to expand, renovate and maintain the property.

Yes, she can also be repaid for the funeral expenses, once there is estate property. It must be paid up to whoever made the payment before, as must all taxes, stamp duties and legal fees and other debts before the net value of the estate can be ascertained. So she should make a claim for the refund of these expenses to her by the administrator of the estate, even if it is the Administrator General of Jamaica.

Finally, even if it is proved that the children you mentioned are his, the administrator general cannot give the whole property to the children just like that. There are several issues to be decided through the applications I have mentioned above, which would clarify whether the holding remains a joint tenancy with the ex-wife as the sole survivor and so solely entitled to it, or that she had abandoned her interest and so has no interest in the property. In this case, this would leave your mother as his spouse widow. The children's interests always come after the spouse and as there is no will, the estate would have to be administered under the provisions of the Intestates' Estates and Property Charges Act and in the proportions contained in it. The administrator general must therefore apportion the respective interests of the beneficiaries as the Act directs.

Your mother's lawyer can explain in greater detail the provisions of the Act. I have no doubt that he/she will protect your mother's and your interest and seek to ensure that she obtains her full entitlements in the circumstances of her situation and case.

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.