He says I'll get money, but no propertyMonday, February 13, 2012
Dr Margarette MACAULAY
Dear Mrs Macaulay,
My husband and I are both in our second marriages. The house we live in is my husband's, which was built by himself and his first wife. They had two children and we have none. She passed away three years ago and my husband says they made a will together leaving the house to their sons. He says he will leave me money but no property. He has this house and about three acres of land which was left to him by his father. Can you advise me of my rights? We have know each other from way back in 1971 and had been in a relationship since then, even when his wife was alive.
Thank you for your letter which raises several issues, though it is rather flimsy fact-wise.
You say the house you and your husband reside in was built by your husband and his first wife, who died three years ago, and that the house is your husband's. Is this so in fact and in law? Or is this merely an assumption of yours? In other words, is he the sole registered proprietor? Were he and his first wife registered on the title as joint tenants or were they tenants-in-common?
If she made a will leaving her interest to their sons, it seems to me that they would have held it as tenants-in-common. I make this assumption because if they were joint tenants, she could not leave any interest in her will, because by operation of law, the entire interest in the property would have passed to your husband and he would be the sole beneficiary and legal owner of the property.
So if she left a will by which she could legally leave her interest to her sons, then it seems to me that their interest must have been held as tenants-in-common and your husband and the children would then hold the property all together after her death as tenants-in-common.
If they were joint tenants, that bequest to her sons in her will would have failed.
Yet you say the property is your husband's. If you are right, clearly then it was a joint tenancy. If this is the case as I said, this bequest to her sons in her will would have failed and so the entire property would have passed by law to your husband.
You also say that your husband told you that he and his first wife made a will leaving the property to their sons and that he would leave you money but no property.
This raises the issue of the validity of this will of his. I assume that he would have made it while he was with his wife and before her death. If this is so, when you and he got married that will of his became invalid and unenforceable by the fact of your marriage. He must make a new will after his marriage for it to be valid and enforceable after his death.
So what is the end result from your position as his wife? Firstly, the fact that you were in a relationship with him while his wife was alive cannot be counted in the mix at all. The only time which counts is that which you spent in a relationship after he became divorced or became a widower. You did not say whether they were separated and then divorced before the first wife died or whether they were still living in the house together as man and wife until her death.
Anyway, the event of your marriage means you have attained legal rights and obligations as his wife.
You are particularly interested in your right to share in you matrimonial home and the property legally owned solely by him in the event that he dies before you. Since you have not provided me with concrete facts about the house, I cannot give you definite advice, but only possibilities.
Let me deal with the three acres of land which are owned by your husband and which you say he inherited from his father. During your marriage you can apply under the Property (Rights of Spouses) Act to the court (Supreme or Family Court) for a ruling whether or not you are entitled to an interest in this land and, if so, how much.
If he dies after you have filed such an application it can still proceed despite his death and be completed by the court. As to your now matrimonial or family home, if it is your husband's in fact and in law, if your husband dies before you, pursuant to Section 6 (2) of this same Act, you will be entitled to a half share of the home as long as your marriage is of some settled years. This is the law. So it all depends on what his true holding is in the property. Is he now the sole legal proprietor or does he hold his interest as a tenants-in-common with his sons? If he does, then you would be entitled to a one-half share in his half share in the property.
I must advise you to go to an attorney-at-law and get clear advice on your true factual situation. When you do so, please try and tell them clearly what your husband's real position is vis-à-vis this property and also when he made the will to which you referred.
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 firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. Mrs Macaulay cannot give advice via e-mail.
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.
Now you can read the Jamaica Observer ePaper anytime, anywhere. The Jamaica Observer ePaper is available to you at home or at work, and is the same edition as the printed copy available at https://bit.ly/epaper-login