Is this will void?

Dear Mrs Macaulay,

I have a situation here where my father died but when we found his will it was dated two years before he got married. Now we’ve heard that once a person gets married the will automatically becomes void, but here is the issue. In the will he left things for his wife, in her married name. How would the will be dated before he got married, yet the wife is named in her married name in it? At the time the will was written she wouldn’t have had his name, yet the will says otherwise. Is this will legal? Or is it void?

The first question is, how is it possible for the will to be dated before he got married but yet his widow is named in it by her married name? This joins the next question that though at the date the will was made she would not have his name, his reference(s) to her in the will say otherwise.

There are various possible answers to these questions. I do not wish and indeed, I should not spell out any of the possible answers, because the answers to why she was so named in the will must be actual and true fact. The witnesses who signed attesting to being present and seeing your father sign the will can give evidence of the process and the date it was done, or that it was before or after their marriage. My answers to your last two questions are, in my opinion, that no the will is not legal because it is void as its date evidences that it was made two years before his marriage.

If the nullity of his will is being questioned by his widow, raising the issue whether his estate is in fact to be treated as testate or is it an intestacy would have to be determined by the court which has the final say in such disputes. To determine that it is a valid will, the court would consider the provisions of the Wills Act and various previously decided cases with similar facts as your deceased father’s situation. If the court decides and declares his will to be null and void, then his estate would fall under the operation of Intestates Estates and Property Charges Act. If the dispute continues and forces you, his original family, or his widow, to make an application to the court, both sides would have to retain your respective lawyers with the attendant financial burdens this would entail on all parties and thereby deplete the benefits to you all – the children and widow.

Though I am not stating possible reasons for the widow being referred to in her married name in the will, the issue of forgery would arise in a court case if an application is made to it to decide on the validity or otherwise of the will. As I stated above, on the face of it and the accepted law, a will made before the celebration of the testator’s marriage is void, as the clear and uncontroverted date which appears on it shows. The anomaly of your father’s widow being referred to in it by her married name to which she became entitled two years after the stated date, raises the legal question of whether the will a forgery or not. However, it seems to me that an argument that the date was a mistake would not or ought not to succeed because, in reality, a mistaken date would not be of two years, but more likely be the year before or the year after.

I therefore would and do advise you all, including the widow, to accept that the date would be upheld in a court action with its attendant financial costs, and that you all should consequently accept that the will was rendered null and void by the marriage which occurred two years after the date on the will.

Having accepted that the will was rendered null and void, then your father’s estate is an intestacy, and his widow and all his children are under the Intestates Estates and Property Charges Act entitled to benefit in the proportions stated for the surviving spouse and for the child or children in the Act.

I therefore advise you all, widow and children, to either report your fathers death to the Administrator General’s Office for them to administer his estate on all your behalves, or you all retain the services of one attorney-at-law to apply for his widow and you to be appointed the administrators of his estate (she and all you and his other children should all discuss all this and decide who ought to be administrators). The Administrator General (AG) according to law, must administer the estate if there is a child under 18 years of age. If not, on the payment of a very small fee, the AG would consent to the widow and you or you and another of his children with the others’ consent, to apply for the letters of administration for the administration and distribution according to the proportions provided in the Act.

I really implore all of you to accept that the will is void and proceed with the intestacy without further dispute because disputes about deceased estates deplete the value of what can ultimately be distributed to the beneficiaries and truly benefit the lawyers representing the beneficiaries in conflict and wrongly depletes the interests of the others who are not part of any dispute. Act as your deceased father’s family, as a family, and apply under the Intestacy Estates and Property Charges Act and let the distribution of the estate be done as provided by the law without any rancour.

I hope that I have clarified the position for you all and you can all proceed to have your father’s estate administered and distributed according to law without rupturing the familial relationships.

All the best.

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.