Daughter withholding mom’s burial funds

DEAR MRS MACAULAY,
My grandparents had life insurance and with the fear of dying, they chose my mom as beneficiary. My grandmother died from cancer and now the insurance is to be paid out to my mom, and she has informed my grandfather that because he has chosen a date for the funeral that she does not agree with, the cheque will be held by her. This insurance was paid for by my grandfather all these years, and should he die as well, my mom is the beneficiary for his insurance as well. Now he is very depressed. The insurance company has already told him that he cannot change his policy to change the beneficiary from my mom. Is there any advice you can give?

I understand your concern and I am, without using too much legal language, going to try to clarify the situation, and assist your grandfather, through you.

The first thing which strikes me is the disrespect being shown by your mother towards her parents’ intentions and instructions, by adopting a controlling stance relating to the funds they must have explained to her, before placing her in their policies as their beneficiary, were not for her personal benefit, but for convenience.  The intention would have been that when one spouse dies, as your grandmother did, that the proceeds of the policy would be collected by your mother for the funds to go to the surviving spouse to use for their expenses and as they chose.

This, your mother has decided to ignore, since she disapproves of the funeral date your grandfather chose for his wife’s funeral.  This is unconscionable and so disrespectful.  Your grandmother’s next-of-kin is your grandfather and he has the legal, moral, and sentimental right to make decisions about his deceased wife’s burial and without having to consult with his child about it.

He could have decided to have you all discuss it and other arrangements for her funeral, but he is not obligated to do so, and your mother has no “right” to take the position she has about disliking the date he has chosen and using her wrongful and assumed right to control, to withhold monies she well knows are not hers to keep. And she would be estopped from denying that she did not know her parents’ intentions before, and while they made their applications for their insurance policies with her as their ‘caretaker’ beneficiary on each of their policies.

So she ought to know that on these grounds, she cannot legally hold on to the funds and deprive your grandfather from them, as she would be committing the offence of converting his monies wrongfully to her own use.

Now to the point of the insurance company refusing to change her as the beneficiary in his policy – this would be because they are saying that his is an irrevocable policy.   This could mean that they were done before 1993 when the Insurance Act was amended to enable policies to be either revocable or irrevocable.   If so, that does not mean it is a complete bar to one’s beneficiary being changed.  If this was after 1993, the company agents would have a duty to ask policy applicants which kind they wanted and explained what each one meant, and their effects.

What I would suggest is that you get an attorney-at-law versed in insurance law practices, to deal with the insurance company on your grandfather’s behalf, by writing to it, as your grandfather’s trust and confidence in his daughter to do what was agreed has been eroded by her current position of disrespect and control. Her reasoning is spurious in basing her decision on the fact the she does not agree with the funeral date he chose for his wife, and so she was entitled to hold the proceeds from him.  This is nonsense!

Your grandfather should instruct the lawyer if the company agent ever mentioned and explained the status of the policies to be revocable or irrevocable before they signed their applications. He must take a copy of his policy to the lawyer, as he would be taking action against the insurance company’s stated position that your grandfather’s beneficiary in his policy cannot be changed.

Any action against your mother about the proceeds of your grandmother’s policy, if she is still holding onto the cheque, is separate and apart from the insurance company’s one.

I hope that you understand that your mother has no legal footing or legal or moral protection for her action and that through a legal representative, your grandfather can move to have the insurance company remove your mother as his “caretaker” beneficiary and replace her with someone else.

All the very best to your grandfather and I have the feeling that you will be around to assist him to rectify the position so that he can feel contented that his intention regarding the proceeds of his policy would be followed.

He can also have a deed prepared by a lawyer and legally properly executed by him and you mother certifying the facts as to what she must do with the proceeds of his policy, if he decides to go by this less contentious means.

Again, 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.