Siblings fighting over property

Dear Mrs Macaulay,

My grandparents died several years ago leaving my mom (their only surviving child) as the sole beneficiary of their property, as well as a three bedroom dwelling on the same property. My mom later died in 2006, leaving her four children in the house. I am the eldest. Since she died things have taken a turn for the worse. The two youngest children were taken in by relatives who took care of them. Being the eldest child, I was not in a position to maintain them as I was in college. However, the house was being occupied by my sister and I. Living with her gradually became a nightmare as she sought to control everything. I had hell with her even to enter the house or even cook a meal in the kitchen.

I left the family home in 2009 and didn’t return until January 2012 to retrieve some of my belongings. I started school again in 2013 and finished in 2015. I am now financially exhausted and decided that the best thing for me to do was to go back home just so I could save some money.

Having contacted my sister about my decision to come back home, I found out that she has done construction work on the house and proceeded to take in her husband (she had recently gotten married). She has also informed me that no one else (which includes my other siblings) will be allowed to occupy the dwelling unless she is being paid monthly rent. Unfortunately, my mother did not make a will and to make matters worse, my younger brother is suffering as well as he is now living with friends because of the behaviour of my sister. As the eldest child, are there any actions that I can take against her? Your advice will be tremendously appreciated.

Your letter illustrates what can happen when surviving children/beneficiaries do not do what they ought to do in law about property in the estates of deceased parents. It is a serious failing, this neglecting to regularise the proprietorship of property to which one is entitled following the death of parents. The reason I am generally given for such neglect is that they had no money to retain a lawyer to act for them. Well, this ultimately results in the necessary administrations multiplying and then being more expensive.

I must say that this situation does not only occur on intestacies (that is, when the deceased did not leave a will), but also in instances of testate estates (where there are wills). People seem to think that they can just take control of the deceased’s premises and the property is theirs.

This seems to be the conclusion your sister has chosen to espouse. It is factually and legally wrong. All of you have a beneficial interest in the premises — the house goes with the land as one property. Your sister does not by any means have any right to sole occupation, nor does she have the right to determine whether or not any of her other siblings can or cannot enter and occupy the premises, nor is she entitled to charge any of you rental. Additionally, she had no right to have her husband occupy the premises without the consent of you and your other siblings.

If anyone is to pay rental, it is him, her husband, and it would be payable to your mother’s estate, that is to say, ultimately for you and your siblings.

I assume that your mother did not apply to administer the estates of her parents when they died and that they, like her, died intestate. This means that their estates must be administered and then hers, before the property, according to law, can pass the administrator and then to all of you, her children, in equal parts.

Your sister’s construction work on the house, without you and your siblings’ knowledge and consent, was done of her own free will knowing that she was not the sole proprietor of the premises. The result of this is that she cannot ask any of you to contribute to the cost of her unilateral works thereon or deduct it from the value of the estate. If what she did is moveable without damaging or leaving an eyesore to any part of the property, she can remove the moveable work. If it is unmovable, then it attaches and goes with the land and so she cannot remove it or claim to be recompensed for the cost at all.

As I said, she cannot keep you or any other sibling from moving in and residing on the premises and if she refuses, you can join together and apply to the court for declaration about the fact that the property is your mother’s estate and those of her parents and further that you and your siblings are her only and rightful heirs and have equal beneficial interests in the property until the administration of the said estates after Letters of Administration are applied for and granted and the estates administered and settled.

You must immediately, as the eldest, go to the Administrator General’s Department. If you have your mother’s death certificate, take a certified copy with you, as well as your grandparents’ and all the siblings’ birth certificates. Do not delay if you do not have the certificates at hand. You see, you must report you mother’s death to that office and provide it with the relevant information needed for it to open a file for that estate and act in order to administer the estate as soon as possible.

You should tell them in detail about your sister’s actions and conduct so that they will act as quickly as possible and take steps to make clear to her that she must cease her wrongful conduct and actions. Do not pay any rental to your sister. If you do so, you would be agreeing that she has the right to obtain rental from you. You both must insist on your rights of entry and right to remain in the home.

It must be made clear to you sister that if she attempts to bar your rights or attempts to rent any part of the home, that legal action will be taken against her and for her husband to pay rent to the estate.

But please either retain a private lawyer to act for you and your other siblings or go straight away to the Administrator General’s Department and report to them your grandparents’ and your mother’s death. If the property is registered land, take the title with you if you have it or a copy of it if you do not, then tell them where you think it is or with whom so that they can move to obtain custody of it.

Do not delay. Act now so you will each get your share of your grandparents’ and your mother’s estate according to fact and law. 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. All responses are published. Mrs Macaulay 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.