My rights as the common-law spouse

Dear Mrs MACAULAY,

My partner and I cohabited since 1971. He died in August 2010. From 1982 until his death, we spent a significant amount of time at his family homestead. The mother died in 1986. She left a will with one of her children as executor. To date, the will has not been probated. Since 1986, my partner and I had paid the property taxes, looked after the house and rebuilt the house after significant damage by Hurricane Gilbert. My partner and I looked after the entire property keeping it neat and tidy, and planting fruit trees and mahoe and cedar trees. There was never any objection to our involvement by any of the siblings.

The mother’s will apportioned the property to all her children, and two grandchildren. At that time there would have been 11 apportionments. As of today, only four children and the two grandchildren, are alive. Other than one minor financial contribution a couple of years ago towards the construction of a fence at the front yard, no remaining person listed in the will contributed financially to the maintenance/upkeep of the property and the house. Not only have we paid the property taxes, but all related utility bills. My partner started to build his house around the original house but he died before he could complete it. It is very rare that any of the remaining children ever come to the property and the last time the grandchildren were there was at my partner’s funeral. The last time the executor was there was to oversee my partner’s burial. My partner is buried in the family plot. Since my partner’s death, I continue to maintain the property and the house. At the time of my partner’s funeral I was advised that I could continue to occupy the house and the property.

Before my partner died, he gave me the title to the property to hold as security to my right to the house and the property. He also bequeathed me his portion of the property.

Out of the blue, the executor has now advised me that he is ready “to administer” the will. He has advised me that I must vacate the property within a 60 day period, in addition to removing the people that have been there for over a decade who help. He intends to install a half nephew. The mother’s will does not specify “property management” but rather apportionment to the mother’s children. The executor also demands that I relinquish the title.

Given that the will has not yet been probated, does the executor have the right to evict me? Is there a statute of limitations on the probating of a will? Is the title required to probate the will? Given my spousal relationship, can I claim ownership of the property and its buildings?

If the will can still be probated can I claim that portion that should have been apportioned to my partner?

Thank you for your detailed letter. I am going to deal with your status first and suggest what you must do immediately.

You must retain the services of an attorney-at-law to represent you immediately because you must make an application to the Supreme Court for a declaration that you are indeed your deceased partner’s spouse. Once this is obtained, you will have the legal recognition of your status as his spouse and his common-law widow, which entitles you to act legally as such. For instance, you say he bequeathed to you his share of the family homestead, according to his mother’s will. I am not sure what is the form of his bequest to you. If it is by way of his own will, the executor named therein must apply for a grant of probate. If it was not by this formal legal means but was done informally by a note or by word of mouth, you would, as his ‘declared spouse’, on the determination of the court of your application (which I have stated you must obtain quickly), be entitled in priority to everyone, including his children if he had any, to apply to administer his estate and to obtain your share of it or the whole of it if he has no children pursuant to the Intestate’s Estates and Property Charges Act.

Your application for the declaration that you are his spouse must be supported by your affidavit, in which you must relate the fact that you and your spouse were single, widowed or divorced persons when you commenced, and that you lived as if you were in fact husband and wife and that everyone treated you accordingly. You must also state the date of commencement of the cohabitation and the fact that it continued up to his death and the exact date this occurred. A certified copy of his death certificate should be produced in and exhibited to your affidavit. You should also relate the places where you cohabited together from 1971, which was clearly not in the family homestead, and since you say you both spent a significant amount of time there between 1982 until his death, specify where else you were for the rest of the time. You must also have affidavits in support of your application of two persons who knew you both and can state as a matter of fact that you and he lived as if you were actually man and wife and were so treated as such by all who had contact with or dealings with you.

After you obtain your declaration, you can apply for Letters of Administration to administer your spouse’s estate so you can legally and actively take steps to protect and obtain all that your spouse’s estate and you in your own right are entitled to.

You should obtain legal advice about such entitlements based on the value of your improvements and additions to, and the total outgoings paid by you both in order to secure and maintain the property, with the knowledge and obvious acquiescence of his mother before her death and of his siblings and the two grandchildren named in her will. In my view they cannot argue directly or through the executor that they are not estopped from claiming that the estate is not liable to your spouse’s estate and to you for all that you did and expended on developing the property. You must consider taking legal action to obtain orders to protect your interests personally and for your deceased spouse’s estate.

It is by the grant of probate that the executor obtains the legal authority to act pursuant to the directions, devises and bequests in the will of the testatrix and he/she becomes a trustee of the estate properties for which he/she must account to the beneficiaries. Without the grant he/she is just the person named in the will to become the executor and they have no legal authority to act until after their application for probate has been granted. You, as a spouse of a deceased beneficiary, who were in occupation and who was managing, paying taxes and other out-goings, and who the entire family members entitled to the property agreed, can continue to occupy the house and the property for as long as you can. If the executor seeks to evict you, refuse to do so and refer the matter to the other beneficiaries for their decision and advise the executor. Failing this, he/she would have to take the matter to court for an order that you vacate the premises. You may pre-empt the matter by applying to the court, as a declared spouse, for a declaration that you have an interest in the premises and a declaration of the percentage of this or its value and for an order that you are entitled to remain in occupation until your interest and that of your spouse are paid to you.

You should also consider adding an application for an injunction directed to the executor to prevent him from taking any further steps to evict you.

There is no statute or limitation period regarding the validity of will. There are, however, revenue implications. As you must know, estate duties have to be paid to the Government on the value of the deceased’s estate at the time of the death, less debts still owed at time of death and funeral expenses.

The duplicate Certificate of Title is not needed for the application and grant of probate as a photocopy of it will suffice for the number and description of the property to be obtained for insertion in the application and revenue affidavit.

You can make whatever claim you wish to make once you are the declared spouse, like any litigant for a matter of interest to them, but whether you will succeed is quite another matter. It would clearly be a hard fought claim as the executor has now decided to apply for probate, I suppose, and to administer the estate upon it being granted.

You and your partner should have obtained legal advice before you invested so much in the property, about how to protect yourselves and your investment and do what was advised. A deed could have been executed by him, yourself and his mother before she died or with and by all the beneficiaries after her death, in which your investments would have been acknowledged as a debt of the estate or whatever was deemed appropriate. This would have been binding and enforceable, a simple step. You could also have married, which would have saved you the necessity of obtaining a declaration of your spousal status. This you must obtain now. It is the law, you have no choice.

You can then file a claim for a declaration of your entitlement to the whole property based on the years of your cohabitation and your entitlement to his estate as his ‘widow spouse’.

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.