Mcgregor

A reader wrote to say that her sister inherited a house from her mother. The house originally belonged to their father, and there was always a verbal understanding that the house would remain within the family.

The reader's sister got married some years after inheriting the house and made the house the home for herself and her husband. The reader's brother-in-law is now demanding that her sister place their child's name on the title.

The reader wants to ensure that her brother-in-law will not be able to take the property out of the family.

The reader may find some comfort in two provisions:

1. Section 2 of the Property (Rights of Spouses) Act defines the family home so as to exclude property which was a gift to one spouse which was intended by the donor to be for that spouse's sole benefit. Therefore, if the house was intended by their mother to be for the reader's sister's sole benefit, the brother-in-law may not be able to get his hands on it.

Proof of inheritance

"According to section 7 of the Property (Rights of Spouses) Act, even if the house could be defined as the family home, the presumption that the brother-in-law has a 50 per cent interest in it could be rebutted by proof that the house was an inheritance.

While these provisions may provide some comfort to the reader, the concern was raised in respect of the rights of all members of the family. It is a worthwhile reminder that the power a person is able to wield from the grave by having a last will cannot be over emphasised. That will is guarded jealously by the provisions of the Wills Act and by the courts. It is only in very limited circumstances that the court will look behind the provisions of a will or adjust the provisions of that will to take care of persons who might have been disinherited.

Sole owner

While the reader's father might have expressed a particular desire in respect of the property, the sister has become the sole owner of the property and is free to dispose of it in any manner which she desires. This includes the ability to sell it, transfer an interest in it to the brother-in-law or some other person and make provision for it to go to someone outside of the family under her will. Therefore, the verbal desire to have the property remain in the family may not be realised.

It would appear that neither the brother-in-law nor the remainder of the family has the power to force the reader's sister to make any specific provision for them in respect of the property. However, the reader's suggestion that the sister prepare a will is endorsed and encouraged.

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