A reader wrote to say that she was the sole registered owner of property which is the family home, and had devised that entire property to her only child under her will. In this article, I want to explore the consequences of the reader's actions in light of the provisions of the Property (Rights of Spouses) Act.

I have assumed that the reader understands that by accepting that the property is the 'family home', it implies that the property is "used habitually or from time to time by the spouses as the only or principal family residence". This raises a presumption that the reader and her spouse each have a 50 per cent interest in the family home. It also means that there are prescribed limits as to the transactions into which the reader may enter in respect of that property.

Based on the provisions of the act, the reader would be well-advised to note the following:

When the family home is registered in the name of one spouse, only, upon that spouse's death, the surviving spouse will be entitled to a one-half interest in the family home.

It is therefore possible for the provisions of the reader's will to be defeated insofar as it provides for the family home to be inherited solely by her daughter. When the reader dies, her widower could make an application to the court for a declaration that he has a one-half interest in the family home and this would serve to alter the provisions of her will.

In the absence of an agreement between both spouses, which leaves the owner of the family home free to dispose of that property as he or she sees fit, it would be best for the owner of that property to devise no more than a one-half interest in that property to a third party.

Struck down

"If the reader attempts to dispose of the family home during her lifetime by transferring it to her daughter or to a third person, her spouse could apply for the transaction to be struck down. It does not matter whether the transaction is one for valuable consideration or amounts to a gift. If there is an attempt to dispose of the property, the reader's spouse could apply to the court for an order to prevent the completion of the transaction, for the transfer to be cancelled or to award him one half of the net proceeds of the sale.

In making an application to the court to restrain the disposition of the property, the reader's spouse is required to prove that the transaction was intended to defeat his claim or right to an interest in the family home.

The reader should give careful consideration to the fact that attempts to dispose of the family home in the manner which she has suggested, could cause her daughter to become embroiled in a lawsuit with her spouse long after she has passed away.

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