Did hubby’s debts die with him?

DEAR MRS MACAULAY,

My husband and I owned our home as tenants-in-common and he died without leaving a will. He also had unsecured loans and credit cards with a bank. I would like to know if I, his wife, would have to sell our home to pay the bank for the unsecured loans and credit cards or would his debts die with him?

Note too that much of his financial decisions were done without my knowledge and while he was suffering from dementia. Before he passed, he was formally diagnosed.

As I assume you know, as tenants-in-common, you each legally owned 50 per cent of the beneficial interest of the property. You each were separate and individual owners of your respective shares. You must therefore, as he left no will, apply for Letters of Administration to administer your deceased husband’s share of the property.

You would need to know the value of it, as you would have to insert the value of his portion at the time of his death in your application. After you are granted the Letters of Administration, you would then have to be registered on the title on transmission as the administratrix of his half share.

Since you did not mention anything about children, I am going to assume that you had no children, in which case you would be the sole beneficiary of his estate. If you had, then you would all have your share of his estate, as the Intestates Estates and Property Charges Act provides for first the surviving wife, and then the children’s share which would be divided among them equally.

You would need the services of a lawyer to prepare and file your application and ensure that your Letters of Administration are granted, and ensure that you have the original grant of the letters and sufficient certified copies of it as you would need to settle your deceased husband’s estate.

What then about his loans and credit cards? You say he was suffering from dementia. If the debts he had at the time of his death were legal, the debtors would have the right to lay claim to his estate in order to be repaid. They would have to make their demand to the deceased’s administratrix, which would be you. Again, you would need the services of a lawyer to advise and assist you as I can only suggest so much, since I have no real details of when and how your deceased husband obtained the loans and credit cards, and his use of them.

If you intend to challenge their legality on the grounds that as he was suffering from dementia, the transactions were and are not legally binding because he did not and could not know and comprehend what he was doing, you would have to have really clear and irrefutable evidence of this medical fact. You should really make sure that your lawyer really advises you what course of action would be best for you, and what your total legal fees would be, in writing, and then work out whether it would be in your best interests to fight the matter in court or settle it with the lenders and with the institutions which issued the credit cards.

In other words, if you wish to secure the whole property, you would have to convince them of your husband’s dementia which rendered his actions unenforceable by them in law and in fact. If you cannot do so, and you do not want a court battle, then you may have to sell your home and use his net portion of the proceeds to pay off the loans and credit card sums. You do not have to, nor can you be made to use any part of your own net portion of the proceeds of sale. There is no law which they can use to force you to do so because they were done by him alone and additionally, without your knowledge.

This is the best I can do with the sparse facts you put in your letter. I hope I have clarified the matter for you and that you understand the importance of retaining a lawyer to advise and assist you after you have given them all the facts at your disposal.

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.