Can my son benefit from his deceased father's estate?

All Woman

Dear Mrs Macaulay,

My son's father is now deceased. He had built a two-bedroom flat on his parents' land — the house is joined to his parents' house. I am not sure if this house spot was given to him in writing. He didn't make a will regarding his two children.

Now family members have rented this house and my son does not get any of the money. He is 16 years old and still in high school.

Could I take them to court? My child was proven to be his father's child by a DNA test through the court in Mandeville. The father also signed his birth certificate.

What rights does he have?

You are concerned about your son, whose father died intestate. You did not say if he built the premises while his parents were alive, but I get the impression that that is what happened. If this is correct, then the parents clearly knew of and fully consented to their son constructing the premises where and as he did.

Their knowledge and consent is important, because if they did not know that he was doing the construction and he just went ahead and did it, then whatever he built would belong to them. The law is that if you build on land owned by someone else and that person does not know and consents to you doing so at the time, then the constructed premises would belong to the owner of the land. The construction, in law, becomes part of the owner's land and so belongs to him or her. But also, a person can, in similar circumstances, ultimately become the owner of land on which construction was done, if and only if they are on the premises for 12 years and no one objected to them being there or tried to oust them. In this situation, they can apply to get what is called an adverse or prescriptive title to the land, a legal and registered one.

If the owners knew that a person was building on their land and said and did nothing, then when the construction was complete or partly complete they sought to get them off, then they would have to compensate the builder for the value of the construction or the increased value added by the construction to the property.

These constructions I have referred to are usually separate from a main premises in the cases I know. Instead, your son's father constructed his premises joined onto the main house. But this will not mean that it is not his property if his parents gave him permission to build his home as he did. In fact, several persons leave their property to their children; for example, as the main house to my daughter Jane, the attached apartment on the left front of the main house to my son John, and the attached apartment on the right towards the rear of the main house to my son James. Then they can either all live there after the estate is settled, or one or two can decide to sell their share to their sibling who can afford to do the purchase.

You have asked about your son's rights. Well, his father died intestate — without a will — leaving your son still in his minority. Assuming that the deceased father was unmarried, his children would all be entitled to their shares of the estate.

Since your son is under 18 years of age, the Administrator General must administer his deceased father's estate, as the law provides.

So you must go to the Administrator General's office and report the death of your son's father, and that office will do all it can to secure your son's interests in his father's estate. The office will also, in fact it must provide support from the estate to ensure that your son has all the necessities he needs to live and complete his education, and when he is 18, give him his full inheritance.

You say family members have rented the house and yet do not give your son any of the rentals. They would have to account for every cent they have collected and prove any deductions for expenses they claim from the rentals. They would in short have to pay them over to the Administrator General's office, from which funds must be provided for your son's support and educational expenses until he is 18.

Please do not delay any further. Go and report the death to the Administrator General's office, so that Letters of Administration can be obtained by them.

Good luck to you and your son.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.

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