Parents excluding one child from will

Dear Mrs Macaulay, My parents have three of us as children. They have a family business of a chain of wholesale supermarkets, that we all worked in from we were teens. In fact, I still work for my parents, and so do my siblings. They have a will, where they have been vocal about the fact that they have named the other two children to benefit when they die, and excluded me, because they don’t like the man I married. I think I deserve my one-third of the inheritance. If they should die with the will in place as is, could I fight it?

The general law in Jamaica does not have any specific legislative provision which obliges parents to leave anything to any specific person(s).  The generally accepted rule of thumb is that they can leave their property – real and personal – to anyone and in whatever proportion they wish.

However, in 1993, the Inheritance (Provision for Family and Dependants) Act was passed in Jamaica.   This was as a result of several discussions I had with a Member of Parliament during the late 1970s about family members being dispossessed by testator parents and spouses, for seemingly – and too often – spurious, selfish, inequitable and immoral reasons, and she promised to ensure that legislation was passed to give such persons the means to apply to the courts for redress, so they could obtain financial provision from the deceased’s estate.

As usual, such rights and laws take forever to be done, and so we only got the Act in May 1993.  It is the Inheritance (Provision for Family and Dependants) Act  – No14 of 1993.  The financial provision can cover educational, medical and general living expenses especially for minor children, but also for older children who fall within the term of dependants.

In some countries challenges have been filed for the courts to arrest the distribution of parents’ estates as their wills direct to provide for a child or children left out of the gifts, bequests and devises or trusts as per the wills, on equitable and moral standards.   Jamaica has not formally recognised this in its Wills Act of 1840, though it could have done so in 2015 when certain amendments were inserted in its provisions.  These were limited to a beneficiary disclaiming their beneficial interest which the will directed, within six months of their being notified by the executor or even an administrator of the estate.  The Act provides how the deed of disclaimer should be made, delivered and filed in the Supreme Court, and if the interest concerns land, to the Registrar of Titles, and it must be signed before a Justice of the Peace, or Notary Public or an attorney-at-law.  The other amendment of 2015  has to do with gifts to attesting witnesses, which are in law void and remain so, but they or their spouses, if they are named beneficiaries, are enabled to apply to the Supreme Court to permit the gift when it is satisfied that there was no fraud, improper dealing, duress, undue influence or other unconscionable behaviour affecting the claimant’s claim.  Such an application must be made within six months of the grant of probate.

So having said all the above, in your situation, you feel strongly that  despite your parents’ actions, you should inherit a one-third share of their estate and that you deserve this.   The short answer is that yes, of course you can challenge the will.  Though there have not been many such claims filed in Jamaica, some have been and some have succeeded, which have brought into play for the Supreme Court’s consideration, the Inheritance (Provision for Family and Defendants) Act,  and in this case, the spurious and unfair reason of not liking your choice of a husband for your parents basing their decision to disinherit you.

Any person of reasonableness would agree you’re your parents ought not to act as they have.  They cannot dictate, in this day and age, who a child should or should not marry; it is not their lives nor will they be living with the spouse they disapprove of. It is in fact invasive dictatorship conduct on their part.

I cannot tell you in this column that you will succeed with such a claim to the court.  In fact, the wise course of action is, if you can avoid fighting a matter in a court of law, you should!

How is your relationship with your siblings??  Could they assist you by discussing that mater with your parents and seek to convince them of the unfairness and unreasonableness of their position because of your husband, especially as they can direct in their will(s) that your husband cannot and should not in any way benefit or share your inheritance?  This is perfectly permissible for them to do in law (The Property (Rights of Spouses) Act certainly permits this course of action, and in the law relating to wills, the testators can direct such a stricture if they so wish in order to preserve their estate only for the benefit of their children. They can state that the man you married should have no part or claim to any part of your inheritance.

If your siblings will not assist, is there no one who your parents have a good and trusting relationship with and who they respect? If there is such a person or persons, ask them to assist.

If this fails, then you can again consider making an application to the court after their death.  But I suggest that you retain a lawyer and seek their advice about how you should deal with your situation.

You would of course give such a lawyer detailed instructions and information, which you have not given me or can give to me in the public press.

I hope you would accept and try to get your parents’ decision changed by discussions with them with your siblings or close and respected friends or other persons, and also by obtaining professional legal advice so that you can properly understand your legal position if you seek to challenge your parents’ will(s).

I wish you the very best and hope that you succeed to change the provision to a reasonable, equal and moral one.

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.