Will surfaces after hubby’s death

Dear Mrs Macaulay,

My husband of 60 years died recently. To our surprise, three months later a stranger notified our children, not me, that there was a will. My husband told family and friends he was going to write a will once he got his property surveyed, which was in progress before his passing.

The alleged will states that I can live in the house until death, and then it goes to his outside child. My husband and I built and lived in our home together for over 35 years until his passing. Our grown children from our marriage were not included and they had a great relationship with their dad.

Can I do anything to protect my interest in my home, even with this will, and with my name not on the title/deed?

I am not sure whether you and your husband were married for 60 years or if he was 60 years old when he died. I am also not clear about the status of the property because you state that he told family and friends that he was going to write a will after he had his property surveyed and which was being done before his death.

Do you mean that there is no registered title for the property? Was the survey completed with a checked survey plan by the Survey Department? Does the plan only show his name as the person who asked for the survey to be done? Am I correct to conclude that there is no registered title in his name?

I am rather surprised that the executor named in the purported will did not contact you directly and introduce him/her self to you and show you the ‘will’ so that you could satisfy yourself that it is indeed your husband’s signature on it.

Before I go any further, let me strongly advise you to retain the services of a lawyer NOW!

You really should have done so as soon as your husband told people of his intention to do his will after surveying the property. You should then have informed the lawyer of your husband’s intention, and that you and he had built the house together and lived on the premises together and asked what steps you could legally take to protect your interests in the property.

This is what the Family (Rights of Property) Act provides: for one spouse to apply to the court to protect or obtain their share of the property during the lifetime of both of them. In fact, the Act provides that the provisions of the Act shall not apply after the death of either spouse, and that other Acts or rules of law or equity shall operate and apply as if the Act had not been passed, except when something had been done or allowed to be done under the provisions of the Act before the death, or when proceedings have been filed and are pending hearing when a spouse dies, in which case the proceedings can be continued despite the death, and this also applies to an appeal.

The Act also excepts death being a bar to proceedings after a spouse dies, when the family home was held by the spouses as joint tenants. Then it provides that the surviving spouse shall be entitled to their one-half share, while under the general law, the surviving spouse would as a joint tenant be entitled to the whole interest in the property.

As I said, you should have gone to a lawyer as soon as your husband said what he did about making his will. The Act even provides that you could have put a caveat, if it was registered land, on the title to protect your interest in the property. It further provides that any transaction concerning the family home needs the consent of both spouses.

There seems to be lack of the clarity for the protection of the interest of someone in your position, if you wish to challenge the position your deceased husband, by his act, took to disregard your interest in your family home. If he had made all his children the ultimate beneficiaries in equal shares, this would have been, if not to you, legally acceptable as all his children are equal in law.

There is provision in the Act, that the court can restrain a party from making a disposition of property interest or proceeds from taking place, which would deprive you of your right or interest. So you could have applied to the court to stop your husband from making the kind of will he did. It does not matter if the property was only in his name, as the Act recognises your right to your one-half share in such circumstances. The Act further provides that when such a disposition is made, as your husband did by his will by denying you of your one-half share in your family home, that you may apply to the court and the court may order that such a disposition be set aside. BUT, the disposition was to you as a life tenant.

It is clear that in the Property (Rights of Spouses) Act, there is a lacuna about circumstances such as yours. It is clear that it should be amended to provide clear provisions about how circumstances such as yours can be fairly dealt with to meet the main purpose of the Act which was to ensure fair and equitable sharing of family homes and properties.

I therefore, again, urge you to get yourself a lawyer to whom you should give all the facts of your contribution to the building of the home and the 35-plus years you both lived there and what your contributions were and the care you provided up to your husband’s death, because this Act does not apply since he has died, but the other laws and rules of law and equity do continue to apply to your circumstance. Your lawyer, after your full instructions, should then be in a better position to advise you and act for you.

I hope I have clarified the position for you and I say to other readers, do not leave things to happen if you are in a similar position. Go to a lawyer and get legal advice. Please don’t do nothing, and then end up losing everything or making the whole situation more costly for you.

I wish you all 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.