Dear Mrs Macaulay,
I am the owner of a piece of land with a house on it. My ex-common-law wife's first name is on the title as a joint tenant, but we parted long ago. Her full name is not stated on the title. My question is, what would be the implication if I die before my current, legal wife? Would she have any claim or entitlement to the property? I have two children by my ex-common-law wife but none by my present wife. The property was obtained before I met my present wife. I would like my two children to be the main beneficiaries.
The fact of your ex's name being on the title of the property would entitle her to one half interest in the property. She would of course have to prove that she is the person whose name appears on it, if she seeks to claim her interest. The fact that only her first name appears on the title could have been the result of an error.
You should visit the Registrar of Titles Office and do a search of the Instrument of Transfer. You would probably find that the transfer document actually contains her full name. This would mean that when the endorsement was being made on the title and/or on the duplicate, her surname was erroneously left out.
You can, whether her full name appears on that transfer document or not, apply to the court for a declaration that you are the sole owner of the premises and for her name to be removed from the title. Your application can be grounded on the basis that you added it as a matter of convenience to secure the property for your children, if this was true. You can also add that she made no contribution whatsoever to its acquisition or maintenance. You can add that you wish an order that your children's names be added to yours on the title as joint tenants, as your intent all along was that the property would go to them and that she was on the title to ensure this intent, which she knew. In other words, she was on the title as a trustee for the children.
You ask whether your current legal wife would have any claim or entitlement to the property. The answer is that she would not. It is your ex-common-law wife who would be entitled to the whole interest. You see, you and your ex hold the entire interest as joint tenants together, and in such circumstances, your current wife cannot have or acquire any interest in it. If you held it as tenants-in-common, then you and your ex would hold your respective interests in separate parcels. Therefore your current wife could acquire and be entitled to a half interest in your half interest. But this is not the case here. She could also acquire a half interest if you held the whole interest in your sole name. This is also not the case.
Therefore, you could ask your ex to execute a trust deed, which must clearly state that she holds her interest and in the event of your death, that your interest would go in trust for your two children. Or you can both do a transfer joining your children as joint tenants with you and your ex.
You would not be depriving your current wife of anything because she cannot acquire or have any interest in the property in any event, save of course for the fact if you ever become the sole registered owner of it, then she could acquire some interest in it.
I hope I have clarified the position for you.
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 email@example.com; 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.