How can my father protect his estate?

Dear Mrs Macaulay,

I often read your articles and most recenty I saw an article (What are my rights as a common law spouse, dated Monday, November 5) that explained much of the information I required. However, in this situation I am the daughter. My father recently ( 2004 -2005) purchased land and built a house. The land and the house is for myself and my siblings, I am the eldest.The land title, utility bills and bank accounts are in both our names. In about 2005 his lady friend started residing with him, and I’m concerned about her rights. It is quite unfortunate for some common law spouses, especially the one in the article I read. I am glad that the law is there to protect the genuine common law spouse. However, there are the malicious ones who use this law for their twisted desires and hurt innocent family members. Tell me, should my father prepare a will to protect his estate for his children? If he does, can the Property Act 2004 and Maintenance Act 2005 lay any claims? Thanks for taking the time to read my letter. I await your response.

I am grateful that you have written to ask about this aspect of the issue because I’m sure a number of children and others may be in similar situations and need to understand their situation in this regard.

You said the land was purchased and a house constructed and the entire property would be your family home and belong to you and your siblings after his demise.

You did not say if any of you children actually live or have lived there with him which would clearly prove the ‘family home’ character.

You also state that the land title, utility bills and bank accounts are in both your names. Again you did not say whether you and your father appear on the title as joint tenants or tenants in common. Nor did you say whether it is registered as a common law title. It is clear though that you and he are acting in concert with regards to the accounts, bills and real property.

A really pertinent point is the fact that his lady friend started living there with him in 2005.

Before I answer your question about a will, let me comment on the relevant points of those I’ve mentioned.

If you and your father are jointly registered on the title (that is, a registered title under the Registration of Titles Act) as joint tennants, it will not matter if his lady friend lives with him for over five years as the aquisition of you and your father on the title happened before they started living together. If you are indeed joint owners, your father does not own a separate portion or interest in the property, as indeed neither do you.

You both hold the entire interest in the property together. Only if there is a partition/division of interests by consent by both of you can this be severed. In such and event, either party will then hold their respective interests as tenants in common. If it is not then specified what your respective interests are, then it will be held on a 50/50 basis.

You however have said that you were put on the title not only to share the holding with your father, but that you also hold the interests of your siblings in an undisclosed trust for them.

I would advise that you and your father make this trust a declared one, by having prepared and both of you executing a Trust Deed to be evidence of this fact. This will protect these interests as the deed will prove to all comers that the property is held by you and your father in trust for him, you and your siblings, and the shares of each of you can be therein stated.

If you are all to share equally, it can state this. If you are to have more than the others, it can also be stated.

If you and your father only have a common law title on which you both appear together as proprietors of the land, I would advise that you apply to have it registered. In this case your father, yourself and your siblings can be registered as joint tenants. When your father dies, it will, by operation of law, pass on to you and your siblings.

The only formality required in such a circumstance would be for you to apply to note his death on the title.

Now to your question about a will being done. If the land title in your name and your father’s is under the Registration of Titles Act, jointly held, he cannot leave it to anyone in his will because as I said, in law, he does not own a separate portion of the interest in the property.

If you are on the title as tenants in common, this is a different matter. Then you each have a 50/50 share separately. In this case he can leave his share to his chosen beneficiaries (taking into effect the provisions of the Property (Rights of Spouses) Act 2004 which came into effect on April 1, 2006.)

Assuming that his lady friend by the time of his death, had lived with hm continuously for the five years required by the Act, then she would be entitled to 50 per cent of his half share in the property as tenant in common with you. Whether she qualifies or not will be determined not by calculating from 2005 when she moved in, but from 2006 when the Act became law.

So if she qualifies as his common-law spouse at the time of his death or before it and his interest is as tenant in common, he cannot take away the half interest in his holding which the Act gives to her whether by his will, or any other form of transfer. If he does so, a court may uphold such a provision in his will or transfer on the grounds that it would be unreasonable or unjust because of one of three factors.

These are: 1. The home was inherited by one spouse which does not apply here; 2. That it was already owned by one at the time of the marriage or at the beginning of the cohabitation; and 3. That the marriage is of short duration(this does not apply to you.)

Your father and his lady frend can enter into an agrement stating that she has no interest in this property. As long as the requirements of this Act are scrupulously followed and she was under no duress to sign, if it is later challenged the court would be inclined to uphold it.

So what is safest for you and your siblings? I would advise that a will is not the safe route to take. The best course is in any view, if the title is not yet registred, that you proceed to do so, and that you all be registered jointly. If this is already done, then leave the title alone and have a Trust Deed done.

If you are registered as tenants in common, you can convert to joint tenancy or your father and his lady friend can enter into the agreement mentioned above pursuant to section 10 of the Property (Rights of Spouses) Act.

With regard to the Manitenance Act, remember that only if a spouse is in need can that spouse apply for the other to provide maintenance.

All the best.

Margarette May Macaulay is an attorney-at-law and a women’s and children’s rights advocate. Send questions and comments via email to allwoman@jamaicaobserver.com or fax to 968-2025. We regret we cannot supply personal answers.