Dear Mrs Macaulay,
My sister and I are named beneficiaries in my late father's will. He died in 2010. The property was purchased “tenants in common” with his wife. I do not have the original will. My sister, who has the original, refuses to produce a copy. My dad's wife gave me an unwitnessed version. My dad's wife wishes to sell the property and so do I. However, my sister is uncooperative and troublesome. Can I proceed without her?
You say that your sister has your father's original last will and testament in her possession and she has done nothing with it, save for the fact that she has refused to hand it over or even give you a copy of it. She has also not taken steps to ensure that an application for probate is filed.
You have not stated whether she is the person named as executor in the will. You do say that you and your stepmother wish to sell the property and, I assume, take your respective shares of the net proceeds of sale.
However, no sale can be effected without the grant of probate of the will. Since you are named as a beneficiary in the will, you will have to take action to force your sister, if she is the executor named in it, to move to apply for probate, or that she be removed and you or your stepmother, or both of you, be appointed to replace her, and that she be ordered to produce the original will and deliver the same to you or your stepmother, or to the registrar of the Supreme Court.
Your sister is acting quite improperly by holding on to the will and refusing to inform you by either reading its contents to you and all other persons named in it, or giving each of you a copy of it. It is not her property to do with as she pleases. If she is the executor, she must either renounce the appointment — that is to say refuse to be the executor, or proceed to perform the duties of an executor and give effect to the directives of the deceased as stated in the will.
If she fails to act, then any person named as a beneficiary in it (like you) or your stepmother, even if she is not named as a beneficiary in the will, can apply to the court for orders for your sister to proceed to act, or that she be removed and you be permitted to act in her place, and that you can apply to administer your father's estate.
If your stepmother is not named a beneficiary in the will, she can apply to the court also, because she is a person with an interest in the property, one-half of which is part of your father's estate.
There is also the point that your stepmother wants to sell her interest. Your sister will not be permitted by the law to prevent your stepmother from selling her interest, but application will have to be made to the court for orders which will force your sister to give up the will, so that your father's estate can be administered. After the grant, the payment of estate duties, and if any is due, it will only be on his one-half share with respect to real estate.
You and your stepmother should retain an attorney to help you prepare the relevant documents for your application to the court, and proceed as quickly as you can. If your sister causes the administration of the estate to be delayed for longer than a year, interest will be building up on the estate duties which the Tax Administration Office (Stamp Commissioner's Office) claims is due on the estate. If this happens, you and your stepmother should insist that your sister alone pays all the interest because this would have accrued as a result of her wrongful act about retaining the will and refusing all attempts for her to act as she should have done.
I extend best wishes to you and your stepmother. I hope that I have clarified the position for you, and I urge you both to take action without delay.
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.