No peace from dead brother’s annoying squatter girlfriend

Dear Mrs Macaulay,

My parents died 2001 and 2002. In 2002 my brother came with his girlfriend to live in the family house. They had one child together then. My sister, who lives next door, was given a deed of gift which states she should not be molested. When my brother came to live there he and his girlfriend started to molest her. My brother is now dead but his woman, who is not working, will not leave the house. They allowed the lights, water and telephone to be cut off. My sister still lives next door with her husband and is paying the taxes for the land. We have given this woman notice upon notice and she will not budge. The house is extremely run down. My sister cannot live in peace. My parents have not left a will. What can we do?

Applications must be made for Letters of Administration to administer each parent’s estate. This means two applications as the parent who died in 2002, having survived the other’s death in 2001, would have inherited the other spouse’s estate.

Either you or your sister can make the application for the Letters to administer each parent’s estate. If one of you is to do it, then the other has to sign consent for the one to do so. If both of you are going to apply then no question of a consent will arise, but you must act together as a unit in order to have a smooth process of administration.

One unfortunate circumstance which you both will have to deal with is that when the application is made and the estate duty is assessed by the Stamp Commissioner’s office, it will be from the date of death. It is worked out on the value of the estate at the date of death and interest will be imposed for each year from one year after the death and until the date of payment.

Letters of Administration must be obtained so that the appointed administrator can take charge of the estate properties and only by this means can the title of your parents’ property be transferred to you and your sister and anyone else entitled to your late brother’s share. In other words, the Letters of Administration will enable the administrator to deal legally with the property. Without this appointment by the court, no one can legally deal with it or transfer it to the beneficiaries.

Additionally, the administrator has the duty to take in and preserve/protect the estate properties, which would mean doing what is necessary about anyone who tries to use it in any way adverse to the interests of the beneficiaries. This applies to anyone, including one of the beneficiaries, as your brother was.

You have not given me enough information for me to determine whether or not your brother’s woman can qualify as his spouse, because you did not specify the number of years they lived together and whether they were both single persons and lived together as if they were in fact man and wife.

If she can in law qualify as his spouse then she and the child would inherit his share under the Intestates (Property and Charges) Act but she must get a declaration from the court that she was his spouse. If she does not so qualify then only your brother’s child will inherit his share.

As to his wrongful occupation of the house, when he started to occupy the house, he should have been paying rent for his occupation. The rental should have been paid into an estate account. Since he, and now his woman, did not, you and your sister can claim ‘mesne profits’ for the period of such occupation and for an order to deduct the sum awarded for this from your brother’s share and put it into a trust estate account. Such an account can be used to make payments which are necessary in order to properly administer the estate and if any money is left after such payments are made, including the administrator’s commission, then it must be divided equally among the beneficiaries — your sister, you, and your deceased brother’s share which will go to his estate.

There must be an application for Letters of Administration to administer his estate as well. If his child is under 18, his death must be reported to the Administrator General who by law must administer estates for the benefit of minor children.

Anyway, you say there is a deed of gift relating to the next door property given to and occupied by your sister and that it specifies that she should not be molested. You relate that your brother with his girlfriend molested her and after his death, his woman continues to do so. Your sister can apply to the court (and could have before now) for an injunction to stop the molestation.

Finally, if you get the Letters for your parents’ estates, you should take her to court for recovery of possession and for mesne profits (which is like rent but wasn’t an agreed sum) in a sum approximate to whatever rental could have been obtained for the premises they occupy and for the time they have been occupying it. You can either then sell it or repair it and properly rent it out. You have to, whatever you do, make sure that you preserve your deceased brother’s net share and give your sister hers and take yours.

I hope you and your sister will decide to act by obtaining the services of a lawyer because you have two estates to deal with and sort out. Then there is your brother’s death which should be reported to the Administrator General. I wish you all the best of luck but your sister must be proactive and take immediate steps to stop all the molestation.

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. Mrs Macaulay cannot give advice via e-mail.

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.