Dear Mrs Macaulay,
For the past several years I have been taking care of my older brother whose wife passed away about three years ago. I am now totally responsible for him, buying his food, paying his taxes, light bills, water bills, and paying for a companion to take care of him. He has many adult children who do not care about him. He gave me the title for his house years ago to keep, and the title is in joint tenancy with him and his wife. Now that his wife is dead, I think he is now the sole owner of the house. He signed an affidavit notarised by a JP and gifted the house to me in compensation for my care and attention to him. My question is, can I transfer the title in my name? How do I go about it?
Your brother is the one who should sign a transfer of the property interest to you, but before he can do so, his wife's death must be noted on the Certificate of Title. Just thinking that he is the owner is not enough. You will have to assist him to take all the necessary steps in order to make his gift of the property to you legal.
You have asked whether you can transfer the title in your name. The more correctly phrased question is, “How can I be registered on the title as the proprietor of the property?” As you are aware, the affidavit sworn before a Justice of the Peace (JP) only provides evidence of your brother's gift to you, or rather his intention to give the property to you. By the way, a JP cannot notarise any document, only a Notary Public can do so. A JP witnesses the signature of the maker of the document before him/her, by signing to this fact.
That said, how can the fact of the gift that your brother has evidenced in his affidavit be made legal so that the title can be in your name?
Your brother will have to sign documents to effect the transfer of all the interest in the property to you by first signing an application to note the death of his wife on the Certificate of Title. A certified copy of the death certificate of his wife will be needed for this, as it must accompany the application. Upon the endorsement of the fact of her death on the title, your brother then becomes effectively the sole legal proprietor of the property.
Then he must sign the Instrument of Transfer to effect the transfer of all the interest in the property to you, as well as a declaration of the value of the consideration for the transfer. The transfer which may state that it is being effected in consideration of all the provisions and care provided by you to and of him, or for love and affection for your care of him, must be quantified in the declaration of value. This assists the quantum of revenue to be paid to the state to effect the transfer. Stamp duty and transfer tax must be determined and paid at the Stamp Commissioner's Office, and the registration fee must be paid at the Titles Office after it is determined based on the determined value of the interest which is being transferred.
You must obtain the services of an attorney-at-law to prepare the documents for your brother to sign and to ensure that his signatures are properly witnessed. Though I said the 'noting of the death' must be done first, both processes — the application to note and the instrument or deed of transfer — plus the supporting documents I have mentioned can all be sent in together. You will, of course, be meeting the costs of these processes. You definitely need the assistance of a lawyer for this.
I would suggest that you get these documents signed by your brother as quickly as possible. If he should die before you make these arrangements, it will be far more costly for you to get the title in your name at that time. You may then be required to apply to the court to obtain a declaration that his affidavit is in fact a sufficient memorandum of his gift to you, and in order to enable the Registrar of Titles to effect the transfer to you as the sole proprietor of the property.
I hope that I have clarified the situation for you, and I urge you to act very quickly. It is in your best interest to have your brother execute the requisite documents with urgency.
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 firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
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.