Property questions

Dear Mrs Macaulay,

My oldest brother and his wife both passed away several years ago without leaving wills. They had lived in UK for a long time and returned to Jamaica where they built a house. My brother had many siblings but his wife had no known relatives as she was adopted. Since their passing my other brother who resides in Jamaica has been renting the property and no one in the family has any issues with that. However, he is the only one in Jamaica and he is in his 70s, so we have advised him to sell the house and divide the proceeds. He has benefited from the rental of the house for almost 10 years now.

What would be the best approach to this issue as there is no will and we do not have my brother’s birth certificate to establish a relationship. Also, my brother is delaying the process as he believes his children can inherit the property. Is this possible?

Assuming that your brother and his wife were registered as joint tenants of their property, then when the first died, the entire property by law would have passed to the survivor. If your brother survived his wife then the property became solely his, but to meet the legal formalities, her death should have been noted on the title. A certified copy of her death certificate would have had to be submitted with the application to note death. In this case, you and your other siblings, if of the whole blood, would be entitled to share his estate between you.

If there are any of you who are only of the half blood, you would only be entitled if he left no full blood siblings. His estate must, however, be administered according to law, which means that Letters of Administration must be applied for and obtained.

Since you say that he did not leave a will, then his death ought to have been reported, and if it was not, a report could now be made to the Administrator General’s Office with the details of the property and of you and the other siblings and the nature of the relationship. There is a prescribed form for this. An officer would be assigned to deal with the estate and relevant enquiries would be made and the provisions of the Intestate’s Estates and Property Charges Act applied so that only those entitled to benefit from the estate according to law do so.

Assuming that your oldest brother’s wife was the one who survived him, then the property would have been hers and belongs to her estate and it would be her blood relatives who would be entitled to share in her estate — and not all of them but only those who can under the Act. Since you say she had no relatives, then if she was the survivor, the property by the Act would devolve on the Crown (the State) as ‘bona vacantia’. You and your other siblings do not fall within any of the categories of those who would be entitled to share her estate.

In such a circumstance, none of you would have the right to have any dealings with the property as you would be intermeddling with land which by law devolves on the Crown. If this is the case your brother here in Jamaica who took control of the property and has been collecting rentals for all the years since the last spouse’s death, is an intermeddler and he ought to promptly report the death to the Administrator General’s Office and let them handle the estate according to law.

As you can see, the question of your entitlements or none will be based on the facts of the time and placing of their deaths. If she survived him, you and your brothers have no right to or interest in the property. So if your brother seeks to obtain the premises which in law devolves on the Crown, he would be acting fraudulently and if he obtains the title in such circumstances, that title would be bad for fraud. He would in such a case have to account for all the rentals he has collected to date.

The best thing to do is to take the matter to the Administrator General’s Office so that they can untangle it and if your brother survived his wife, they will ensure that the whole blood family, and failing any, all of the half-blood family, receive your entitlements. You should ensure that the form he sends in includes all your siblings. In fact you can obtain the form from the office’s website and also send in one yourself.

Good luck.

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.

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.