Reader:

My husband of 21 years died last year. When we got married, he was divorced and we lived in a house which he and his ex-wife owned as joint tenants. She lives overseas and their children have also lived there for the last 19 years. I lived in the house with my husband until he died and I continue to live there with my son.

Do I have a right to claim an interest in the house?

Response:

In the usual case, the death of one of two joint tenants means that the survivor takes the entire property by virtue of the rule of survivorship. However, there are some instances in which the court may find that one joint tenant has lost his interest in the property and loses his right to acquire the entire property upon the death of the co-tenant.

The latter point was raised in the case of Wills v Wills - a decision of the Privy Council in an appeal from the Jamaican Court of Appeal.

In Wills v Wills, one of two joint tenants remained in Jamaica while the other migrated to the United States. The co-owner who remained in Jamaica exercised full rights of ownership over the property while the other co-owner did not visit the property or show any interest in it in excess of 12 years.

Upon the death of the co-owner who remained in Jamaica, his new wife claimed that the co-owner who remained in Jamaica had acquired a title to the entire property by adverse possession and that she should inherit it. By extension, the new wife contended that the co-owner who had migrated had abandoned her interest in the property.

The Privy Council ruled in the new wife's favour, but was careful to point out that each case must be decided on its peculiar facts. Therefore, although Wills v Wills is authority for the view that one co-owner could lose interest in property by adverse possession, it does not stand to reason that this reader will enjoy the same result.

Adverse possession

The reader may consider applying to the court to be appointed the personal representative of her late husband's estate and then make an application for a declaration that her husband had acquired his ex-wife's interest in the property by adverse possession.

Whether such an application will succeed will depend on whether the reader can provide evidence that the husband exercised full acts of ownership over the property to the exclusion of his ex-wife for a period of 12 years or more. The reader should also note that, if the application succeeds, it will mean that her husband's children would stand to inherit the property along with her.

Note: This article should not substitute for advice from your own attorney-at-law.

Sherry-Ann McGregor is a partner and mediator with the firm of Nunes, Scholefield, DeLeon & Co. Do you have a pressing legal question? Send it to: Lifestyle@gleanerjm.com or lawsofeve@yahoo.com.