Dear Mrs Macaulay,
I have been married for over 30 years. The marital home in which I live in with my son is solely in my husband's name. Recently I have the feeling that he has done something behind my back. I keep telling him to add me to the title but he keeps telling me that he's going to make a will. How do I find out if he has already made a will? Also, how do I go about adding my name to the title?
Though the title of the family home is in your husband's sole name, whether or not your husband gives you your one-half share in the family home in his will, in law, pursuant to the Property (Rights of Spouses) Act, on his death you are entitled to the one-half share anyway. Therefore, his telling you that he is going to make a will is meaningless. Additionally, if you wait until he dies, assuming he dies before you, and you then find out that by his will he has left the property to someone else, you would then have to go to court to rectify the position by declaring null that bequest in his will.
Since you suspect that he has done something behind your back recently, you ought not to accept the statement “I will leave it in my will for you” from your husband. You are entitled to hold your one-half interest in your name during both your lifetimes. You must be proactive and protect what is your entitlement. You cannot just sit around and rely on your husband to protect your interest in what he obviously considers to be his sole property. You have to do what you must to get your own name on the title of the family home, and you must act quickly.
You cannot find out if he already made a will unless he has recorded it in the Registrar General's Department. But why does it matter? He can make a new will every month if he wishes, and the latest one would be the valid one. What you should find out is what he has done with the title of the property. He may have borrowed a great deal of money, and a mortgage is now endorsed on it. If this is so he has acted contrary to the Act, because any transaction relating to your home must be done with the consent of you both. This means that he is not supposed to do any transaction whatsoever without your knowledge and consent relating to the family home.
I say you must act quickly and I mean this. What you should do is go to the Registrar of Titles Office and do a search for the title and get a copy. You can also get it certified. Then you will see if there is any change by the addition of any transaction. You need such a copy anyway, because even if there is no transaction endorsed on it, you ought to, as the Act provides, protect your interest by taking the necessary steps to protect your interest in it by lodging a section 139 caveat under the Registration of Titles Act, or applying for a declaration of your interest to the court, and for the consequential orders to get your name registered on the title as a proprietor of your 50 per cent legal entitlement.
It behoves you to protect yourself according to the provisions of the Act. You should retain the services of a lawyer, because if your suspicion is correct that your husband has done something underhand, it can be set aside by order of the court on the basis that he did not seek your consent or obtain an order of the court dispensing with your consent before doing such a transaction.
It is up to you to act in accordance with the law to protect your own interest. If you sit around trusting that you will get your entitlement through his will, then you are being foolish. And if after his death his will says otherwise, you will then have to go to the court anyway to fight for your entitlement, and how do you know that you will be mentally fit enough then to be able to do what you must to fight for and obtain your legal entitlement?
So I am suggesting very strongly that you ought to act now and use the provisions of the Act to secure your interest before you grow much older. The law is there to protect the interest of spouses in circumstances such as yours. Do not ignore your suspicion to your detriment. Search and get a copy of the title, and get a lawyer to act for you and secure your interest in your family home and be legally registered on the title as you ought to rightfully be.
Good luck, and please act now.
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.