Mcgregor

GG wrote:

My mother and stepfather bought a house together as tenants in common. My stepfather died in 2004, leaving a will in which he did not specifically mention his share of the house. The last clause of the will stated that anything he owned, which was not specifically mentioned, should go to his daughter.

My mother died in January 2008 and left a will stating that her share of the house should go to me and my brother.

Who owns the house at this time?

A - Once the wills of GG's stepfather and mother are probated, the house is to go to GG, her stepsister and her brother. GG's stepsister is entitled to the interest which was held by her father and GG and her brother are entitled to the interest which was held by GG's mother.

GG did not state whether there was any indication on the title for the house regarding the portion of interest her mother and father had in the house. However, in the absence of any specific statement, the law presumes that each person held a 50 per cent share.

Due to the fact that the house was owned by GG's mother and stepfather as tenants in common, each was entitled to give his or her share to a beneficiary of their choice. In the event that either person had died without leaving a will (i.e. intestate), his or her share would be distributed in accordance with the rules of intestacy under the Intestates' Estates and Property Charges Act.

Similarly, if either GG's step-father or mother had died leaving behind a will in which his or her share was not specifically mentioned, and the will contained no residuary clause, that person's share of the property would have to be dealt with in accordance with the rules of intestacy.

Residuary clause

The latter point underscores the importance of not only having a will, but having one which is properly drafted to include a residuary clause. There will be occasions when a particular asset (whether real or personal property) is not specifically mentioned for a number of reasons, e.g. it may have been forgotten or the asset might have been acquired after the will was executed.

In either case, the residuary clause will fill the gap by ensuring that the rules of intestacy do not have to be invoked. The person named as the beneficiary of the residue of the estate will get any gifts which are not specifically mentioned in the will.

In GG's case, her stepsister is the residuary beneficiary under the stepfather's will and that is the reason GG and her brother will now have to share the house with her.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@ yahoo.com or Lifestyle@gleanerjm.com.