Where there’s a will, there’s FIGHTING
Dear Mrs Macaulay,
I am writing to you to get some advice on court appointed mediators. My mother passed away in 2019. She did leave a will and there are six beneficiaries. The case is currently in the Supreme Court awaiting grant of administration. However, one of the six children is trying to gain total control over the estate, even though there is a will. Please advise on the best way to move forward with communication for a smooth and peaceful resolution of my mother’s estate.
I have noted that your deceased mother’s will is going through the process of the probate application. This means that the executor or executors named in the will are conscientious and timely. Yet, you say that though your mother’s six children are the beneficiaries of her estate, one of your number is interfering with the estate by trying to take control of the estate.
Well, unless this sibling is the executor or one of the executors named by your mother in her will, he or she is an interloper and can be made by the executor(s) to account for such interference. Only the executor(s) can in law deal with the estate properties both real and personal, and their office becomes legally operational upon the grant of probate. They can and should, however, seek to secure all properties of the estate while the application is progressing. The executor(s) can therefore instruct the interloper sibling to desist from interfering with the estate.
I assume that this sibling is not named as an executor, and even if he or she is so named with one or two others, no solitary action is permissible.
You have asked about court appointed mediators, as you seek to have the interference dealt with through mediation, instead of by way of an application by the executor(s) to the court to restrain the interloper and have him or her account to the court for the interference with the estate. Mediation is a good idea, especially as it is a family matter. There is, however, no necessity for an application to the court to have it appoint a mediator. If the executor(s) who are the applicant(s) for probate consider mediation a good idea, it can be arranged by contacting the Dispute Resolution Foundation to make arrangements for a qualified Supreme Court mediator to conduct a mediation with all the parties. The telephone numbers are 876-906-2456/908-3657 and the website is drfja.org, and it is housed at the Peace Centre, 1a North Avenue, Kingston 4.
The mediation process is extremely effective for ensuring a smooth and peaceful resolution of the administration and settling of your mother’s estate by the executor(s) without interference from any beneficiary. In addition, it can be arranged and done in a very timely manner compared with an application to the court even when supported with an affidavit of urgency. Further, it is a superb venue for the interloper to be made to understand the consequences of his or her interference with any part of the estate properties, without legal orders against him or her being made, but realising that they could be made, and so they can agree to desist from the interference. I say all this from my own knowledge of many years as such a mediator; however the only possible problem which I must point out is that the interloper sibling may decide not to participate in the mediation, so the executor(s) must do their utmost to secure the sibling’s attendance and participation and thereby all the parties can be heard, and understanding and agreements reached.
If the sibling refuses to attend and participate, then the executor(s) must take legal action to stop all interference or raiding of the estate properties, because if they do not, and the estate suffers loss, the other beneficiaries can take legal action against the executor(s) for them to be compensated for any such loss as they have the legal obligation to take control and settle the estate by distributing the bequests as directed by your mother in her will.
Failure to do what you are legally obligated to do has legal consequences. Interfering in the performance of the legal duty of another person, also has legal consequences.
So I hope the executor(s) request and fix a mediation with the foundation and obtain the attendance of all the parties and obtain the necessary agreements that no one should interfere with, or any interference should stop, and any property or asset taken should be returned or should be taken from the interloper’s bequest and replaced in the estate, and ensure a true and proper settling of the estate according to the will, and as the law dictates.
I take this opportunity to thank all readers of my columns, and to wish you all and your families, and my editor and the rest of the staff of the Jamaica Observer, and especially of All Woman, that despite the continuing presence of COVID-19, they will have a safe, healthy and happy Christmas.
Margarette May Macaulay is an attorneyat-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.