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Wives or husbands who for one reason or other cause the Certificate of Title to matrimonial property to be registered in the name of one spouse only are almost certain to find themselves in trouble if the party in whose name the property is registered dies intestate, that is to say, without leaving a Last Will and Testament. Matrimonial property means property acquired during the duration of the marriage by the contribution in cash or kind of husband and wife together.

Take, for example, the case of Lily Charles who became Ma Hamilton by marrying Luckie Hamilton in 1965. Her husband had already fathered a son called Sonny boy by another woman. And Ma Hamilton had had a daughter, Claron, by a previous marriage. Claron lived with and was maintained by her father. At the time of the marriage all the Hamilton's had was a 5-acre plot of uncultivated agricultural land which Ma Hamilton had inherited from her father, and a determination to succeed. Through hard work the Hamilton's were able by 1970 to build a 3-bedroom concrete bungalow on a ½ acre village lot and a fine farm on the 5-acre plot. Ma Hamilton greatly admired her husband. He was a dedicated businessman who, it seemed, turned everything he touched into gold.

So, in October of that year the house and lot and the farm were registered in the name of Mr. Hamilton. He would have had no objection to registering the two properties in their names jointly or even having the title to one made out in the name of his wife and the other in his own name. But his wife said she was not interested in these things. After all, they could make a Will at any time. And if her husband did not make a Will, if he died before her everything would pass to her since she was his wife. So she thought.

Then in 1980 Mr. Hamilton died suddenly, intestate. His wife was overcome with intense grief. But she was not worried as the home was comfortable, the farm sold bananas every week and there were thousands of dollars in a Bank Account which the couple had opened jointly. Further, her daughter, Claron, who had lived with her father from the day of the marriage, took the decision to move into the matrimonial home so as to be there for her mother in case of need.

All went well until last week when Ma Hamilton at age 90 took sick. The doctor came as the Priest was leaving. He left shaking his head and saying: "Even if this one passes, prepare for the worst." In these circumstances Claron now wishes to ascertain what rights, if any, she has to ownership of the house and farm.

Whatever rights Claron may have would not have accrued in respect of her "stepfather". That is so because Mr. Hamilton died intestate and she did not qualify as Mr. Hamilton's "child" or "issue" under the Intestate Estates Act which governs the distribution of the assets of a deceased dying intestate. She had not been adopted by Mr. Hamilton. Neither had she been accepted as his child or lived with or been maintained by him.

As to the possibility of rights accruing by her mother, it should be noted that on the death of Mr. Hamilton the aforesaid Act immediately took effect. It is of no consequence that the originally uncultivated 5-acre plot was contributed solely by his wife. Nor, that the matrimonial assets were acquired by the joint endeavour of both spouses. If in his later years Mr. Hamilton had chosen to object to his wife's wish that her name be added on the Certificate of Title of the properties, these two facts would have been sufficient to persuade a Court to find for his wife. But upon the death of one spouse, that is the end of the matter and the principles of intestacy are set in motion.

According to these principles set out in the Act Ma Hamilton would be entitled, first of all, to all the "personal chattels" of her husband including household furniture and personal effects. These she would take absolutely, there being no requirement that she share them with anyone whatsoever. Further, she would be entitled to whichever of the two is greater, namely, (a) either $3,000.00 or (b) a sum equal to 10 per cent of the net combined value of the farm and the house with interest at 5 per cent annually until such sum is received. Ma Hamilton would also be entitled to one-half interest in the house and farm during her lifetime. The remaining half would go to her husband's son, Sonny boy.

In effect, the personal chattels and the $3,000.00 or 10 per cent income on the Estate with interest represent Ma Hamilton's assets in her own right. They are hers absolutely. These she is free to bequeath to Claron by Will or pass on to her otherwise. But as to the matrimonial home and the farm, that is not the case. Rather than being the absolute owner of one-half interest to do as she pleases, Ma Hamilton holds a life interest in both which pass on her death to Sonny boy, her husband's child. In these circumstances she cannot dispose of these assets as, for example, by giving and devising them on her death to Claron. There are two ways in which Ma Hamilton might obtain some measure of absolute ownership of the house and farm. She may sell her life interest to the Personal Representative of her deceased husband and in that case be entitled to pass the purchase sum to Claron by Will or otherwise. Or, she may obtain full absolute ownership of the properties by outliving Sonny boy and any parents, grandparents, brothers, sisters, aunts or uncles her husband may have had.

The obstacles placed in the way of Claron's access to ownership rights to property acquired in part by her mother would not have appeared if her mother had sought, while her husband lived, to add her name on the Certificate of Title of the respective properties. This might have been done either upon first registration or subsequently. Further, Claron would have been able to claim under the Act if she had been a legally adopted child of Mr. Hamilton, or an illegitimate child whom he had accepted as his own or if she had lived with or been maintained by him.

( Dr. William 'Para' Rivière is an Attorney-at-Law)

Copyright © William Para Rivière, 2012