A will, a ‘jacket’ and a fight over property

Dear Mrs Macaulay,

My wife reads your column in the Observer and she thought I should write to you on this matter. My 83-year-old aunt has a property in Vineyard Town. Here are the details:

1. Her husband died in April 2010 and in his will he left her J$100 and all properties to other relatives.

2. The title to the Vineyard Town house is tenants-in-common between Mable (my aunt) and Frank (the husband).

3. Frank willed 100 per cent of the house to his grand-niece.

4. Frank died at 90 and a 25-year-old young lady is now claiming to be his daughter and has advised of the following:

a. She is entitled to all her father’s property.

b. She will ‘burn down” all properties if she doesn’t get her way.

This young lady’s mother has scared Frank’s agent who collects the rent, into giving her money. She says she is taking the matter to court to contest the will which does not acknowledge her. My aunt says the girl is a ‘jacket’ and she is not concerned about her and her legal claims. Frank’s lawyer refuses to speak to anyone and gives no information. My aunt and the grand-niece want to sell the house. They both live abroad (Florida and Atlanta) and have agreed.

We want to buy the property. What would be the best way to accomplish this given the various complexities of the matter?

I have always felt that people who do what the deceased did by giving beneficiaries what can only be described as a slap in the face are so wrong. But then we have no idea why this man acted in such a wrong and terrible way towards his wife. If there was trouble in paradise, it generally takes two to tango and he ought to have dealt with whatever his grouse were during his lifetime and given her an opportunity to defend herself or explain her actions. With him dead he took this away from her and in effect left her to be ridiculed by others. He shows by his will not the slightest respect for or appreciation of the years she spent as his wife.

Now let me give you practical legal answers to your queries.

Regarding numbers two and three of your letter, the provision in his will cannot be upheld, as he did not have the whole legal and beneficial interest in the property. He only owned 50 per cent of it and your aunt still owns 50 per cent in her own right. You made it clear that they held the interests in the premises as tenants-in-common. He therefore had no right in fact or in law to purport to give away her property to someone else. Even if he had purported to assign her 50 per cent interest in the property to her in his will, this would be of no effect because the 50 per cent is already, in fact and in law, hers.

His attempt to devise all the interest in the property to his niece therefore fails. She can only get a part — that is his 50 per cent interest.

Your aunt is therefore still the legal owner of 50 per cent of the property and she is entitled, and has always been entitled, to 50 per cent of all rentals collected before his death and after his death.

Regarding number four, the young lady claiming to be his daughter is only doing that, claiming. She has no right to anything, unless she obtains a declaration of paternity which she must get by an application to a court, and would benefit only assuming he kept other property which he did not dispose of in his will.

Regarding 4a: No, she is certainly not entitled to all his property! Even if she was his and your aunt’s daughter born in wedlock, she would not be entitled to all his property! If she is indeed his child, she was it seems unacknowledged as such by him. She must therefore apply for and by evidence prove to a court of law that he was her father and obtain a declaration of paternity.

This, however, will not give her claim to his property. He left his property (his 50 per cent) to his niece in his will and supposedly disposed of his other properties in his will. She cannot challenge his will, as she was not an acknowledged child, nor can she apply for support pursuant to the Inheritance (Provision for Family and Dependents) Act 1993, as she was clearly not dependent on him up to his death.

The person who can challenge his disposal of other properties in his will to others without any acknowledgement of her interest is your aunt. The Property (Rights of Spouses) Act enables her to apply to the court for a declaration of her interest in those other properties and order that she gets her share.

Regarding 4b: This threat to ‘burn down’ all properties is clearly a stated intent to maliciously destroy property by committing arson, which is an offence. This ought to therefore be reported to the police as quickly as possible.

Her mother’s action which caused the agent to be so fearful that he agreed to pay over the rentals he collects to her, is clearly extortion — also a crime that ought to be reported to the police. One-half of the rentals are rightfully your aunt’s money as she owns one-half of the property.

The young lady can take the matter to court, but as I have stated earlier, in my opinion she will not succeed.

Your aunt may be right and probably has the best attitude to this person’s claims. However, if she goes to court, her claim must be acknowledged and contested, because if not, she could get judgement in her favour by default, that is to say, because only her claims will be before the court. Her claims must therefore be answered and contested. She will, of course, have no locus standi — that is the right to file the claim and be heard by the court — unless she has a declaration of paternity.

Your aunt must get an attorney-at-law, who can make enquires in the court to discover whether an application has been made to probate the will. The attorney-at-law should also obtain a certified copy of the title of the Vineyard Town house from the Titles Office, to prove your aunt’s interest if she does not have the original Duplicate Certificate in her hands. Then, the attorney-at-law can also communicate with Frank’s lawyer (of whom you mean the attorney-at- law for the estate) who must reply, unless he/she wishes to breach our canons of ethics.

Your aunt’s attorney-at-law and the attorney for the grand-niece could apply on their behalf to the court for an interpretation of the will and for directions as to their respective proportional entitlements to the property and for an order that it be sold to you and your wife or that you and your wife may have the first option to purchase it, and if not, that it be sold by auction or private treaty and the net proceeds be apportioned to them in keeping with their interests therein.

I hope I have clarified all the complexities for you.

Margarette May Macaulay is an attorney-at-law and a 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. We regret we 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.