Last Will & Testament : Protecting your inheritance
From the last two articles we know making a will is the first stage of ensuring that a person’s desires are carried out after passing on. The next stage is usually having the gifts under the will distributed without challenge from disgruntled friends, or family. Previous articles looked at cases in which a son challenged a will on the basis of forgery, while a wife challenged a will on the basis that her husband did not make reasonable provision for her.
Part I highlighted the importance of ensuring the person making the will (testator) actually owns the property being given as a gift.
But there are cases in which a testator actually owns the property, and the intended person may lose the gift. This week we will break down a case in which this happened and see how it could have been avoided.
The backstory
The testator owned land in Port Morant, St. Thomas which had two houses; one at the front and the other at the back. The house at the back was built from the 1960s. The testators daughters; Veronica and Tamazine were at odds. Veronica believed that the testator gave her the house at the back, as a wedding gift. Veronica had no documentation to prove this.
Under his will, the testator gave the entire property to his wife for the rest of her life, after which Tamazine should inherit the property. The testator died in 1971, and his wife died in 1982. This is important, the property was unregistered and Tamazine had the entire property registered in 2000, in her name.
Having lived in the house at the back for almost 40 years, with her children and grandchildren, Veronica passed in 2015. Once Veronica passed Tamazine tried to claim the house at the back as hers and remove Veronica’s family. Why? According to Tamazine, Veronica got permission from the wife to live there until Veronica died. Veronica’s daughter named Caren was not amused. She refused to vacate the house and approached the court for help. So far, who do you believe?
The house at the back
It was originally a two-bedroom board and concrete house partially on stilts. Caren said she lived at the property from birth until she went to England in 1986 then to Canada. Veronica joined Caren in Canada in 1988 just after hurricane Gilbert. They both worked in Canada and sent money to renovate the house.
The house at the back was completely reconstructed; the foundation was reinforced, windows, flooring and doors were changed, indoor plumbing inserted to allow running water, and an indoor bathroom and kitchen were added.
Tamazine as a beneficiary
Often times, focus is placed on executors since they are responsible for distributing the gifts under the will. But beneficiaries also have a role to play, and are entitled to protect the assets they know are given to them as gifts.
Tamazine migrated to the USA in 1966, and returned to Jamaica in 1996. There was no evidence that Tamazine visited the island before 1996.
According to Tamazine, the house was never dilapidated and only the roof was damaged during hurricane Gilbert. She also insisted that the wife who died in 1982 was the one who fixed the roof. Tamazine claimed to have only allowed the adding of the indoor kitchen and bathroom for Veronica’s comfort. That Veronica was only permitted to stay there by the wife after Veronica’s marriage ended. Tamazine denied that Caren ever spent any of her own money to renovate the house. The Supreme Court decided in favour of Tamazine but Caren appealed the decision.
Beneficiaries; what not to do
In court, Tamazine admitted that she would sometimes collect the money sent by Caren to pay the builder. She had previously denied doing so.
When Tamazine returned to Jamaica, she completely reconstructed the house at the front and took no interest in the house at the back. In 2000, when Tamazine had the property registered in her name, she completed the entire process without telling Veronica and Caren. This secretive behaviour matters. Why? It was obvious that Veronica and Caren spent a significant amount of money and generally dealt with the house as if they had a claim to it.
The issue
Tamazine did nothing to stop Veronica and Caren. Neither did she warn them that the house belonged to her. In law, if you stand by and watch another person assume control over property you know to be yours, and allow a person to spend money on it, the person can make a claim to your property.
The Court
If Tamazine was to be believed, the issue remained since Tamazine was aware that the wife gave permission for Veronica to live there, and Tamazine gave permission for the building of the indoor bathroom and kitchen. Tamazine never mentioned the will to them.
The Court of Appeal did not find Tamazine and her witnesses credible, partly because of the inconsistencies. Tamazine’s mother could not have fixed the roof since she died before hurricane Gilbert. Tamazine’s other sister claimed the testator showed her the title to the property with Tamazine’s name. This could not be, since the property was not registered until after the testator’s death.
The result
Tamazine’s failure to stop Caren and Veronica, made it unconscionable for her to claim the renovated house as hers without compensating Caren. The Court of Appeal ordered that Caren be paid in full for the renovations, or Caren should live there undisturbed as long as she pleased.
Next week we will consider a situation in which the beneficiary was proactive.
Until next time, stay safe.
Disclaimer by the author: Nothing in this article is to be taken as legal advice. You should consult an attorney regarding your specific case. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.