Thu | Sep 21, 2017

Laws of Eve | Is your will your will?

Published:Monday | February 6, 2017 | 2:00 AM

If we accept that the first rule in estate planning is that you must ensure that you have a valid will, then the case involving Joy Williams, Norman Martin and Maureen Martin, which was decided in the London County Court in February 2016, confirms that the second rule is that you must update your will.

The salient facts of the case, based on the media reports I have read, are that:

- Norman and Maureen were married and had one child together.

- Norman and Maureen separated, but never got divorced.

- Norman entered into a relationship with Joy, whom he lived with since 1994.

- Joy and Norman purchased a house together as tenants in common, and shared that home until he died in 2012.

- Norman left behind a will, that predated his relationship with Joy, under which Maureen would have automatically inherited Norman's share of the house.

- Joy brought an action in court for reasonable financial provision to be made for her from Norman's estate.

Based on the general principle that a person's will should determine the distribution of their assets after death, Maureen should have successfully defended Joy's claim and inherited the house. This is because the statute makes an exception to the general principle by protecting some categories of persons (including a widow or dependent children) from being disinherited, would not have entitled Joy to challenge the will on grounds that there was no provision in the will for her, because she could not fit into any of those categories.

(It is important to note that the laws in England and Jamaica differ. In Jamaica, common-law spouses enjoy the same status as married couples in relation to matrimonial property. In England, common-law spouses have no legal status).

The judge in the Williams case ruled in Joy's favour. He said that the "fair and reasonable result" was that Joy should "retain an absolute interest" in the house she and Norman had shared in a "loving and committed" relationship. The judge rejected Maureen's argument that she and Norman had remained in a committed relationship at the time of his death and that he had simply maintained two separate households.

This ruling has gone against the grain of long-accepted principles. The judge went even further by ordering Maureen to pay £100,000 to Joy for costs.

There are lessons to be learnt from the Williams case:

- It is important to review your will from time to time and update it.

- Cohabiting couples should ensure that the legal status of their relationship is established. In other words, if your partner is a married man or a married woman, you can never become a common-law spouse. That will affect your right to claim maintenance or an interest in property during your partner's lifetime or financial provision from his or her estate after death.

- Persons who are in committed relationships (even marriages) should have discussions about financial matters, including the preparation of wills so that there is clear understanding as to what should happen to their assets upon death.

- Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.