Can the outside children come after hubby’s estate?

Dear Mrs Macaulay,

My husband is quite sickly and I don’t think the prognosis is good. During our marriage he had twin outside children who he supports financially. However, I have never acknowledged them and neither have our children born in the marriage. Should my husband pass, would these children and their mother have any claim to his estate? They are both under 12. We have two houses, both in joint tenancy, and there’s our business and other things that we have invested in together. Of note, I have been the one to invest the majority of the funds, but I’m not discounting his labour value. The understanding has always been that these would pass to our children, who are almost adults. His name is on these children’s birth certificates. Can he do something before he passes to protect them, so they can’t come after our joint assets?

I am sorry that your husband’s health is bad and that the prognosis is not good.   You are concerned about the status of the twin children he had with another woman during your marriage and who he has been supporting financially. He should be applauded for meeting both his moral and legal obligations to these children.  He is the kind of father so many children here need.

You remained in your marriage despite his infidelity, so you clearly forgave him. However, you seem to have transferred your upset, anger and such-like feelings to the children, who through no fault of their own, were produced by the conduct of two adults who engaged in a relationship which brought them into the world.   This is extremely shameful of you, and it is clear from the material matters which are causing you anxiety, that you resent that your husband provided and is still providing financial support for his children (and I venture to believe that he would have had access and a relationship of some kind with them and so he should have been doing).

For you to state, “however, I have never acknowledged them and neither have our children born in the marriage”, demonstrates the depth of your hatred of these innocent twins, and you ensured that your children also adopted your erasure of their existence. You made this statement, it seems with pride, when the opposite is the truth.

All that being said, I recognise that your attitude and that which you passed to your children was due to your lack of knowledge and understanding, and there is hope that with my responses to your concerns, that you will be able to accept these children and their factual and legal status and entitlements, and divest your heart and mind of the burdens of bitterness and anger which have overshadowed your life up to now.

You can also remove the burden from your children so that their lives can be enriched by them developing a relationship with their half-siblings, and thereby let light into all your hearts and minds.  Please think about this and try to act as you should towards these twins who did not ask to be born. Surely, if you did honestly forgive him, you can by focusing on that fact, feel some interest and warmth towards them.

Sorry, but I had to comment on the position you put yourself and these children in, when what happened was not their fault but that of your husband and their mother.  But now, let me deal with your questions.

To the issue of the claim the children and their mother would have in your husband’s estate, first, their mother would not have a claim against his estate unless your husband was also providing maintenance for her, which does not seem to be the case.  Second, yes the children do have a clear legal right of claim against your husband’s estate exactly as do your own children, and as they are in their minority, they are entitled to be supported from his estate until age 23, or in other words, the end of their tertiary level education or training.

Their equal status with your children is within the provisions of the Status of Children Act of 1976, which abolished the concept of illegitimacy and made all children whether born within wedlock or out of wedlock, of equal status. “Child” is defined as including a child born out of wedlock, and in the body of the Act, the concept of legitimacy was abolished from the 1st day of November 1976, and your husband acknowledged the twins as his children by ensuring that he appears as their father in their birth certificates. There is no concept or acceptance in fact or in law of “outside” children as you referred to the twins in your letter.

Generally, with properties held jointly, upon the death of one joint tenant, that person’s interest passes by law to the survivor.  However, because of the provisions of the Property (Rights of Spouses) Act, if the two houses you and your husband hold jointly were registered after the date of the births of the twins, these legal registrations of joint tenancies would not be valid as they would result from actions which would deprive the twins from their legal entitlements to share equally with your children in their father’s estate.

You have not given any details about the legal character of your business and the “other things”, as you put it, in which you and your husband invested. I therefore conclude that his interest in the business and in the other things would fall to his estate and the twins would be entitled to their share in his estate as I have already stated.

You also asked whether your husband can do something before he passes to protect the twins, which I hoped was a glimpse of your budding understanding and acceptance of them as his children and your children’s half siblings, but you then went on and added, “so that they can’t come after our joint assets”.   Anyway, the clear answer to this question is a resounding yes, your husband could either set up trusts of certain sums of money for each of them  to be administered either by his bank (but this can be costly), or by their mother,  which would not be costly and would be the best one to choose. Or he could do his last will and testament and devise specific gifts to all his children, and since your children are almost adults and are to inherit the two houses, then the younger children should be devised greater portions to provide for them to adulthood.

If no provision is made in  either of these ways, then their mother can file and claim in the Supreme Court under the inheritance (Provisions for Family and Dependants) Act 1993 for the continuance of her twins’ financial support to be provided from his estate until their majority, as it cannot be denied that they were dependents of his. Such a claim would succeed.

The mother can also go to the Administrator General’s Office and report his death and provide certified copies of her twins’ birth certificates and supply the details to have that office act to ensure that your husband’s estate provides for their maintenance, and that they get their share of his estate’s assets, equally with your children.

I hope therefore that you have time to ensure that your husband signs the necessary documents to provide for his twins’ maintenance, and give them their shares of his estate and thereby that he can rest in peace thereafter.  This would also save both you and your children any public embarrassment and great costs from legal actions being taken on behalf of the twins following your husband’s death.

I hope that I have clarified the position for you and I hope that you can achieve a peaceful heart and mind by doing right for the twins and indeed for your children by accepting your blood relationship to them.  Ignoring their mother is different, but really, I hope you can also free yourself and your children from the yoke you all have been carrying for years, and bring light into your hearts and minds.

I wish you all the very 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