Court sustains prenup precluding wife from husband’s estate

A businesswoman who had signed a prenuptial agreement, but wanted to meddle in her husband’s estate after his death, was denied the opportunity when the Supreme upheld the agreement.

The claimant, Joyce Facey, had challenged the prenuptial agreement on the basis that she had not received legal advice and that it was not witnessed by a justice of the peace as required by the Property Rights of Spouses Act (PROSA).

But Justice Lorna Shelly-Williams, in the judgment handed down last month, granted the order sought by the executor of the husband’s estate, for a declaration that the prenuptial agreement was valid.

“This was a fairly short, childless marriage, where the parties infrequently visited each other. The documentary evidence points to the fact that Mr Facey’s intention was to keep his properties separate from his wife’s. He signed the prenuptial agreement indicating this, then he signed a will devising the properties he owned to his children.

“I find that the defendant’s property had been protected in the agreement and as such she was not placed at a disadvantage,” the judge concluded.

The judge pointed out further that the wife had not produced any evidence that she had been prejudiced in signing the agreement.

CHILDLESS MARRIAGE

“In addition, I note that the marriage was childless. This is important as, in the event the parties had produced a child, this could have affected the terms of the agreement. The needs of the child would then have had to be considered,” the judge said.

Shelly-Williams also highlighted that, based on the evidence before the court, the wife was aware that her husband had two properties while she had one but that there was no evidence that he had used this fact to unduly influence or pressure her to enter into the agreement.

Mrs Facey and her then fiancé, who was a driver residing in Bridgeport, St Catherine, before he migrated to the United States, had signed the agreement in October 2014.

The agreement indicated that both individuals had made full disclosure of each other’s financial assets and liabilities and wished to waive the right to the division of properties owned by them individually in Bridgeport and in Greater Portmore in the event of a divorce.

The agreement also noted that if the marriage ended by death, the prospective husband and the wife remained free to devise as much or little of the properties in the agreement, to each other or any other person or persons.

It said further that, if there was no agreement concerning how the properties are to be devised, it should not be presumed that the other party is entitled to claim it but that it should pass to any child or children of the deceased party. Therefore, upon death, each party’s property would go directly to their child or children if there is no will.

Mrs Facey had initially filed a claim against the executor of her husband’s estate, Comala Remogene, seeking several orders including a restraining order barring the executor from obtaining a grant of probate for the estate or dealing in the estate.

The wife also sought an order for permission to commence an administration claim in respect of the estate.

She also wanted a declaration that her late husband’s will and testament was null and void on the basis that it was forged and did not bear her husband’s signature.

The defendant, Remogene, however, filed a defence and counterclaim in which she sought a declaration for the prenuptial agreement to have an effect in whole.

The defendant also indicated that there was no intermeddling of the couple’s properties and that the claimant had no interest in the deceased’s estate.

REQUIREMENTS NOT MET

Mrs Facey, in reply, besides challenging the trust which applied to the estate, agreed that there was a prenuptial agreement but challenged it on the basis that two requirements of the PROSA had not been met.

She also asked the court not to grant the declaration sought in the counterclaim.

A trial date for April 17 this year was subsequently scheduled in respect to the claim but, on the date of the trial, Mrs Facey informed the court that she recently obtained counsel and could not proceed.

A new trial date for June was given but the judge made an unless order for Joyce to pay over cost of US$3,252. 71 and $165,480 for the defendant by May 9, failing which her case would be struck out.

Mrs Facey failed to make payment in the stipulated time and the case was struck out.

The judge was however left to deal with the counterclaim to decide whether the prenuptial agreement should be given its full effect.

Shelly-Williams noted in her judgment that, to conclude whether a prenuptial agreement is valid, certain prerequisites set out by PROSA have to be satisfied including that each party must obtain independent legal advice before signing the agreement and the legal adviser shall certify that the implications of the agreement have been explained to the person obtaining the advice. Also, the signing of the agreement by both parties must be witnessed by a JP or attorney if signed in the island.

Mrs Facey had indicated that those two criteria were not met, which was not challenged by the defendant.

The court however found that, notwithstanding those shortcomings, there was no disadvantage to Mrs Facey.

“The defendant sought to imply in her evidence that she had been prejudiced as she had failed to read the agreement before signing it. I find it remarkable that the defendant, who is described as a 48-year-old marketing representative on the marriage certificate, could have signed an agreement, that concerned property that she had acquired prior to her marriage without reading it,” the judge highlighted.

The judge also noted that, although Joyce sought to suggest that the presence of her sister-in-law at the signing had caused undue pressure, there was no direct evidence from her that she felt threatened, intimidated or pressured to sign the agreement due to the sister-in-law’s presence.

Attorney-at-law Jamila Thomas represented Romogene while Enid Lee Clarke Bennett and Renae Robinson represented Mrs Facey.

tanesha.mundle@gleanerjm.com