Dear Mrs Macaulay,

I am writing concerning a matter where a man died intestate (to the best of my knowledge). He was insured through his workplace; he worked over 10 years there. He died while carrying out his duties last year. He died leaving two children who are minors, one at primary school age who lived with him, while the other is high school aged and lives in another parish. He left his mother as the beneficiary on the insurance of over $5 million. I believe he did this out of ignorance if he did, or he believed his mother would be fair with the settlement.

According to the information I’ve gathered, the insurance was paid out to grandma using the burial order. It is obvious the beneficiary or whomever is managing his estate does not intend to give the children anything, or any reasonable amount from the insurance. Being that he looked after his mother and both his children when he was alive, what can be done?

We have here in Jamaica an Act called the Inheritance (Provision for Family and Dependants) Act, 1993, which was passed and came into effect on May 20, 1993, for the purpose of making reasonable financial provisions for the family and dependents of a deceased person from their estate, when by either a will or the operation of the law of intestacy, or the combination of both the will and the law, no reasonable financial provision is made for the maintenance of the dependents and for matters connected with and incidental thereto. In other words, exactly what has happened to the deceased’s two minor children, in that the deceased only named his mother as the beneficiary of his life insurance proceeds.

My experience leads me to go further and to say that it is probable that the agent who arranged his life insurance policy failed to advise him that since he was maintaining his two minor children, they ought to have been named as beneficiaries as well, and that his mother could have also been named as the trustee of their shares, which would have resulted in her being legally bound to honestly provide and manage their shares for their continued maintenance. I also believe that from experience, that he would have made it clear to his mother that he was naming her as his beneficiary, but that if and when he died, she must use the proceeds for herself and for the children’s maintenance.

Anyway, the only Act which exists which may assist these children is that which I have named here. The children and their paternal grandmother are clearly his family members and are within those named in the Act as persons who can apply for financial provision under the Act — that is to say, a child, or a parent, with the condition that he or she was being wholly or partially maintained, or was legally entitled to be so maintained by the deceased immediately before his death. This latter part means that if an order of maintenance had been made for him to pay a certain sum or make periodic payments to his mother for her maintenance or a part thereof, his surviving wife, or even a former wife, would have the same maintenance condition as would have applied to him.

You will note that there is no condition attached to a child’s qualification to apply for financial provision of his or her deceased parent’s net estate. This is because not only is a parent bound by law to maintain his/her minor children, but the statement of fact in your letter makes it clear that the deceased was, during his lifetime, actually maintaining them.

The other law which is relevant to the $5 million, apart from the above stated Act, is the Insurance Act, which following an application for financial provision for the deceased’s minor children being filed in the Supreme Court, the judge would have to consider and decide whether the proceeds of the insurance policy paid out to the grandmother, the sole named beneficiary, fall within the jurisdiction of the court to make orders pursuant to the Inheritance (Provision for Family and Dependants) Act for the provision of financial payments for their maintenance from the said proceeds of insurance. Apart from what the relevant Acts provide, the judge would have to consider the factual evidence which the applicants or their ‘next friend’ making the applications of their behalf, provide in support of their claims, and apply the relevant provisions of the law to the facts and decide if they are proper cases for orders to make financial provision for the children. An important fact for judicial consideration would be, was the deceased’s mother being wholly or only partially maintained by her deceased son, or merely being given periodic gifts by him.

If the judge so decides, the Act gives the court very wide powers to make reasonable financial provisions for the applicants, even to the extent of ordering that a trust fund be set up out of the net estate for the benefit of the children and the grandmother.

A very important provision in the Inheritance Provision Act, for short, is that applications for orders for financial provisions must be made within six months from the date on which representation over the deceased’s estate is first taken out. If the six months have expired, an applicant can only make such an application with the permission of the court.

It’s therefore clear that anyone who is to act for or represent these children must act as quickly as possible to prepare their applications for financial provision, inclusive of their application for permission to be able to proceed, even after the expiration of six months, since their grandmother used their father’s burial certificate to obtain payment from her son’s life insurance proceeds.

Most important as well is the provision in the Maintenance Act, which also places a legal obligation on grandparents to, as far as they are capable, maintain their children’s unmarried minor children, or a child who is physically or mentally infirmed or disabled, in the event the parent is unable to. This grandmother, without any application being made under the Inheritance (Provision for Family and Dependants) Act, can have applications filed against her in the Family Court for the parish in which she or the children reside, for orders of maintenance to be made for her to maintain them. And if she attempts to answer the applications on the grounds that she is not capable to provide for their maintenance, the evidence of her son’s life insurance proceeds can be used.

You must ensure that you either retain a lawyer to act for them, or go to the Family Court with certified copies of their birth certificates, a certified copy of their father’s death certificate, and his birth certificate (to prove that their grandmother was indeed his mother) to show that she is now legally obligated to maintain them pursuant to the Maintenance Act. If you cannot afford a lawyer, just take these certificates to the Family Court and you can obtain the assistance of the clerk for free.

Please do not delay any further. The maintenance applications are the most straightforward ones to do, as they are not as complicated as proceeding under the Inheritance (Provision for Family and Dependants) Act. The Maintenance Act is clear about the legal obligations of grandparents to maintain their grandchildren when their parents fail and are unable to do so for health reasons or their death, as is the case with these children,

Please apply for the orders for their grandmother to maintain them as quickly as you can, and I wish you and them all success.

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.