Can my husband will his property to someone else?

Dear Mrs Macaulay,I’ve been married for 30 years. Our home is in Jamaica and I am not on the title — only my husband is. Can he decide to will it to someone upon his passing and leave me with no rights to the property?

Thirty years ago it was the usual practice for husbands to register the then referred to ‘matrimonial homes’ in their sole names.

This practice, and some other discriminatory and unfair treatment of their wives, led the women’s movement to lobby for legislation to ensure that the principles of equality and equity were the order of the day in the entitlement to and distribution of property interests of married and cohabiting spouses.

The Property (Rights of Spouses) Act 2004, as it was enacted by Parliament and signed by the Governor-General on the 10th March 2004, was then introduced. The Act came into operation on April 1, 2006.

Before the Act became law, the answer to your question would have simply been in the affirmative as your husband would appear on the title of the property as the sole registered owner, and he would in law then be entitled to do whatever he wished with the property and to dispose of it in his will as he chose. In those years too many husbands left their properties to their paramours, leaving their wives and sometimes their children destitute.

The Act was passed to correct the inequalities and the harm caused to surviving family members by these legal provisions and practices.

Your husband can indeed execute such a will. But will it be held valid in disposing of the whole property? The Act defines ‘family home’ as the dwelling house which is owned by one or both spouses and which is generally used by them as the main family residence. It includes the land and all buildings on it, as well as the improvements. But it excludes anything which was a gift made to one spouse only, which the donor intended for the sole benefit of that spouse.

Section 6(1) of the Act provides that “each spouse shall be entitled to one-half share of the family home on the breakdown and termination of the marriage or cohabitation, except where the parties jointly own it, and in any case where the court decided that a 50-50 divide would be unjust or unreasonable. It must consider if the family home was inherited or if it was already owned by one spouse at the time of the marriage or the start of cohabitation, or if the marriage is of short duration.

Then in section 8, the Act deals with your situation — where the title to the family home is registered in the sole name of one spouse only. You may take action in order to protect your interest, including lodging a caveat under section 139 of the Registration of Titles Act, and further, it provides that any transaction concerning the family home that your husband may wish to engage in needs both of you to consent to the transaction. So your consent is vitally necessary, as long as you do not unreasonably refuse to give it.

Say, for instance, he wishes to take out a second mortgage in order to do some repairs/improvements to the home and you refuse, even though the works are necessary to make the premises more secure and enhance its value. On such a refusal, your husband can apply to the court for an order that your consent be dispensed with.

The Act also provides that if you find out that your husband intends to make his will defeating your interest in the family home, you can apply to the court to restrain him from doing so, and also ask for the declaration of your interest in it.

So your husband can execute whatever will he wishes, but it would be impossible for it to defeat your interest, as long as you act quickly after his death by filing a claim against his executors that it was done in order to defeat your interest.

Or, to have peace of mind, you can enter a caveat on the title for your one-half interest in the property, or you can apply to the court for a declaration of your interest in the property and for all necessary orders to legally secure your interest in it.

I strongly suggest the latter, but you should first ask him to join your name with his as joint tenants on the property. You have been married so long that he should have done this long ago! This would be simply you and your husband signing a transfer from him to you which would make you both joint tenants or tenants-in-common, and no transfer tax is payable on such transfers between husbands and wives and common-law spouses.

If he refuses, consider applying, during his lifetime to the court to secure your share in the property legally.

I hope I have clarified this issue for you. Retain a lawyer to advise and act for you.

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.