Another woman is making claims to ex-hubby’s estate
Dear Mrs Macaulay,
My former husband is now deceased. He died in 2009 and his estate is now being settled. Can another woman claim to be his common-law spouse if they lived together for less than a year after we divorced? If she claimed to have a child for him, can I request proof by DNA to see if the child is really his? To my knowledge, my child is his only biological child, and therefore the only child who should be able to make claims under his estate.
I would appreciate any assistance you could provide in this matter. The answer to your question is yes, the woman can make the claim. However, the real question is, can she prove it? You see, anyone can make any claim they wish, but they must be able to prove it.I assume that your ex-husband did not leave a will and that your child is a minor. In that case, the Administrator General must administer the estate and protect the interests of his minor child or children. This woman cannot simply claim to be his common-law wife and expect the Administrator General to take her word for it. She would have to apply for and obtain a declaration from the Supreme Court or the Family Court of her parish that she is the common-law wife of your deceased ex-husband, supporting it with her affidavit asserting what she relies upon in proof of her claim. In turn, you would make your denial of her claim — and the facts on which you rely — known to the officer in the Administrator General’s office dealing with the estate.In order to contest such an application, you would have to know about it. If and when you do, you must intervene in the case on behalf of your child, and you must file an affidavit contesting any assertion that the woman has made in her affidavit that she and your ex-husband, both unmarried, lived together as man and wife for a continuous period of five years preceding his death. Lastly, you must state the basis on which you assert that the woman’s paternity claim for her child is untrue. You see, she would also have to apply for a declaration of paternity of her child by proving that she and your ex-husband were engaged in an intimate relationship when the child was conceived, and that the birth occurred within the accepted period thereafter. She also has to support this application by her own affidavit and those of two witnesses.You also ask whether you can request proof by DNA of the child’s paternity. In the first place, you must be a party, on behalf of your child, to the woman’s application for the requisite declarations which I have mentioned above. Then you would have to apply to the judge hearing the applications for a DNA test to be done. Your ex-husband is dead, so no specimen can be obtained from him. This being the case, the court will have to agree to the test being done with a specimen of your child to determine whether they are siblings.I advise you to retain the services of a lawyer to assist you to do searches in the courts. By this means you will find out whether the woman has filed her applications. The lawyer will assist you further with the interventions you must make in the two applications which the woman must make: first about her alleged status as common-law wife, and second about the declaration of paternity of her child. Then, during the course of the hearings, the lawyer will help you to apply for the DNA test. You need professional assistance to do all these things.I hope that I have clarified the matter sufficiently so that you can plan your way ahead on behalf of your child’s interest in the estate.
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.
