His wife says my children will get nothing

DEAR MRS MACAULAY,

My children’s father, who I lived with, recently passed away. After things had settled down somewhat, I attempted to sell the vehicle he had been driving, as well as some other assets of his, but was prevented from doing so. His wife, who lives abroad, informed me that she was in the process of settling his estate, including the house I had bought jointly with him, and my children and I would have nothing to get. They had been apart for over 10 years, and we were living together for eight. His name is on my children’s birth certificates. What can I do to protect myself and my children? Can she really lay claim to our house? He did not leave a will, and he had four older children with her. He has considerable assets, including several businesses and land, but my name is only on the house we shared.

It is so unfortunate that you and the deceased lived together for eight years and though he and his wife had been separated and lived separate and apart for over 10 years, he never regularised his status by applying for and obtaining a divorce.

Anyway, nothing can be done about that now, but though you are not in law his common-law spouse, his legal widow cannot disinherit your children or take from you your legal entitlement to property you jointly own with him. I hope that you both were jointly registered on the title of the property, as this would make your entitlement legally and factually obvious. If not, you will have to prove that you purchased it together with him. This can be done from documents pertaining to the purchase and through the attorney-at-law who acted for you both in the sale and purchase transaction or through the one who had carriage of the sale.

You ask what you should do to protect your children’s interests. The first thing you should have done and must still do NOW, immediately, is to go and report his death and give particulars of your children, who must be young, and of his older ones and of his long separated wife and their addresses and contacts to the administrator general (AG). You see, when someone dies without leaving a will, and with young children in their minority, the law requires that this official administers the deceased’s estate.

Whatever the widow said to you, she cannot in law administer the estate. In fact, if she has acted as she said she was going to do to process his estate, she would be an interloper and acting contrary to law and anything she has done would be null and void. This is why you could not sell the vehicle he had been driving as it is part of his estate, which must be administered by the AG.

She cannot disinherit your children, in fact the AG will have to take control of all his estate and provide support for your children who are in their minority until they become 18 — legal adults — before they can have personal control of the rest of their share of their father’s estate.

As I said above, the widow cannot do anything about your joint interest in the premises you and the deceased acquired jointly. You must establish this to the AG who will then ensure that you obtain what you are factually and legally entitled regarding the premises — as a joint registered owner, the whole of it. You will have to have his death endorsed on the title and then it will be solely in your name. In this circumstance, it would not need to be administered by the AG, as you would be the survivor and your entitlement to the whole occurs by operation of the law and cannot be altered or interfered with by anyone. If you were not put on the title as a joint registered owner, make copies of all documentary proof of your joint acquisition of the property, then the AG could act through the court to establish your half interest in it as tenant-in-common and let you have the value of this or accept that you are a joint owner and act accordingly. If you are not satisfied about what is being done about your property interest, you can get your own personal lawyer to apply to the court to declare, on the proof that you have that you are a joint or half interest owner, for you to get your share of the value of the property whether the whole or a half interest.

Remember that the first thing you should do to protect your children’s rights and entitlements to share in their father’s estate as provided by the Intestates Estates and Property Charges Act and to be provided the maintenance they require to live and continue their education and proper development, is to go and report their father’s death to the Administrator General’s Office at 12 Ocean Boulevard, Kingston (Telephone-876-922-1830 or cellular-876-618-1542, e-mail admingen@agd.gov.jm).

Please do so quickly and ensure that the wrongful interference of the separated wife is ended and matters progress according to law.

All the best to you and your children. It is up to you to do what must be done to make sure your children have what they need to live and grow up properly. So go to the AG now, waste no more time. Take his death certificate or the pink slip with 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.