Dead brother’s son left out in the cold

Q: Dear Mrs Macaulay,

I live in Canada. My brother passed away leaving a two-year-old son in Jamaica. There is an estate for him in Vancouver that is in probate, but I don’t know how to add my brother’s son to it to get finances. My brother had been sending him money. There are people fighting over my brother’s estate who refuse to acknowledge his son. They have told me to prove that the child is his. If I get a DNA test using my blood, will it be legal in the Vancouver courts seeing that the child lives outside North America? And how would I submit it to a court, as nobody will give me information? I’m just trying to help my brother’s son out.

A: I am so happy that you are trying to ensure that your brother’s son in Jamaica is provided for from his father’s estate, especially as you say he used to send money to Jamaica for his son’s maintenance.

Since your brother seemed to have resided in Canada, died there and has his estate there, it is Canadian law which would apply, and in particular, the laws in the State of British Columbia.

I really commend you for your interest in your nephew’s welfare. From reading between the lines of your letter, it seems to me that your brother died intestate (without leaving a will). This is very unfortunate, as it would have made things much easier if he had left a will, thereby making provision for his loved ones as he deemed right and fair. I must just say here that this demonstrates why every adult must have their wills done, especially when they start having children.

If I am right that he did not leave a will, then you should contact the Public Guardian and Trustee’s Office (604-660-4444) in Vancouver and tell them about your brother, his death, the fact that he had fathered a child, now two years old, who is in Jamaica and who was being supported by your brother up to his death but who is now being excluded by those seeking to administer the estate.

You must make the call to this office as quickly as you can, and I would say going in to see them would be even more effective. Waiting longer may result in the grant being made by the Probate Division of the Supreme Court and the estate being distributed. Officers in the Public Guardian and Trustee’s Office would advise you what, if anything, you can or would need to do. If a DNA test is required, they would also tell you how best this could be done and to whom the test result must be submitted.

They would also be able to act if they can, pursuant to the law, to protect your nephew’s position and possibly, even if the estate has been distributed, they could take action against the administrator(s), because from what you said, he, she or they could not claim that they did not know of the child’s existence, and that this was a dependent of your deceased brother. You see, they can only be protected from culpability if they could prove that they knew nothing of the child’s existence. With you around, they clearly cannot successfully claim they did not know about the child and his dependency on your brother.

If your brother did in fact leave a will, you should still call the Public Guardian and Trustee’s Office and give them all the facts and that you are prepared to assist in any way that you can, even submitting yourself for a DNA test to help to prove the child’s paternity.

So please act quickly. Call the office and go and see them if you also live in Vancouver. If not, then tell them everything on the phone and let them do their statutory duty to assist you with your concern for your nephew with regard to his deceased father’s estate.

I hope that you yourself have made your will. You have seen and experienced what can happen to children who may be excluded from benefiting from their parents’ estate by other people’s greed and lack of integrity. This should be a statutory lesson to all adults that they ought to make their wills and protect their children, as we never know when our deaths will occur.

Good luck and I hope that your nephew will get the provision that you have been trying to get for him.

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.