Mom wants to donate land for displaced youth

Dear Mrs Macaulay,

My mother and I live in the States but she wants to donate land to an organisation out here that wants to build a camp for youths in Jamaica. The issue is that the land was willed to her by her deceased father, and her ownership is in a probated will. The said land has valuation numbers but no title, and it is not registered. How could she still donate this land? Would she need to retain a lawyer if she is donating it? Would the person receiving the donation need a title before taking ownership?

Your mother’s decision to donate land which she inherited from her deceased father is very kind, thoughtful, forward-looking, and an investment in the future development of Jamaica.

You say that your deceased grandfather gave the land to your mother in his will. You have not stated whether the will was probated and the estate administered and settled. You have also not stated when your grandfather died. You see, when he died, your mother as the named beneficiary of the land became equitably entitled to it, but without the grant of probate and without the executor(s) named in the will and on whose application probate was granted administering the estate and settling the land on her, she is not yet the ‘legal proprietor’ of the land.

The executor administering the estate means that he or she has paid all taxes due to the State and paid all his proved debts and has done all the necessary legal processes in order to settle the gifts to all named beneficiaries and also has accounted for all the assets taken in and/or expended.

If this has not been done, it must be done. Your mother will have to produce her father’s original will for the probate application to be done. If the original has been lost but a copy is available, then the executor named can apply with the copy, which must be proved to be a true and accurate copy of the original (as required by the Rules of Court), for a ‘Grant of Administration with Will (copy Will) Annexed’.

Your mother should ensure that the organisation in question is duly incorporated under the Companies Act of Jamaica (for charitable purposes or otherwise), so that it is to the incorporated body to which the donation is made and not to individual persons. This is to ensure the safety of the gift and the continuity of its user. I would suggest that your mother and the ‘incorporated organisation’ execute a Deed of Gift or Agreement, in which the subject land and the purpose of the gift, that is to say, for the establishment and operation in continuity of a camp for youths (and specify the categories of young persons who should be chosen to use the camp) are clearly spelled out. Or, this can be done in the Instrument of Transfer of the land, if it is registered land, or in a Common Law Conveyance.

You state that the land is not registered land. It would make the transfer easier if when the estate situation is sorted out, that your mother applies for the land to be registered and that the certificate of title be issued in the name of the ‘incorporated organisation’. This should be done after the execution of the Deed or Agreement which spells out the reason for the gift and the agreement of the ‘organisation’ to establish and operate the camp as specified in such deed or agreement.

You ask if your mother will need a lawyer to donate the land. I would strongly suggest this, and she must ensure that the deed or agreement and the fact of incorporation of the organisation are complied with, if she wants to be sure that her gift is used for the purpose for which she is making her donation. The donation of titled land would more readily ensure that the safety processes I have mentioned are assured, so that the land is not diverted to or by individuals for their own interests or for other purposes entirely.

I would therefore suggest that your mother should obtain the services of an attorney-at-law. You both can check with the General Legal Council or its website whether the lawyer is in good standing and ensure that the documents sent for your mother’s signature incorporate her clear and full intentions.

Thank your mother for her generous planned gift and for such a good purpose, especially if it is to be for children of the poor and struggling population.

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.