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A businesswoman who signed a prenuptial agreement but wanted to interfere with her husband’s property after his death was denied the opportunity when the Supreme Court upheld the agreement.
Plaintiff Joyce Facey challenged the prenuptial agreement on the grounds that she had not received legal advice and that the agreement was not witnessed by a magistrate as required by the Property Rights of Spouses Act (PROSA).
But in a judgment handed down last month, Judge Lorna Shelly-Williams granted an order sought by the executors of the husband’s estate declaring the prenuptial agreement valid.
“It was a fairly short, childless marriage and the parties saw each other infrequently. The documentary evidence shows that Mr Facey’s intention was to separate his property from his wife’s. He signed a prenuptial agreement indicating this and then he signed a will dividing the property he owned between his children.
“I am of the view that the defendant’s property is protected in the agreement and that she is not disadvantaged as a result,” the judge concluded.
The judge further noted that the wife had not produced any evidence to prove that she was prejudiced in signing the agreement.
Childless marriage
“Furthermore, I note that there are no children from this marriage. This is important because if the parties had children, this could have affected the terms of the agreement. The needs of the children would then have to be considered,” the judge said.
Shelly-Williams also stressed that based on the evidence before the court, the wife knew that the husband owned two properties and she only had one, but there was no evidence that the husband used this fact to improperly influence or pressure her into entering into the agreement.
Ms. Fessey and her then-fiance, who worked as a driver in Bridgeport, St. Catherine, before moving to the United States, signed the agreement in October 2014.
The agreement states that the two have fully disclosed each other’s financial assets and liabilities and want to give up their rights to divide their respective properties in Bridgeport and Greater Portmore in the event of a divorce.
The agreement also states that if the marriage ends by death, the future husband and wife remain free to distribute most or part of the property specified in the agreement to each other or anyone else.
The court further stated that if there is no agreement on the distribution of property, then it should not be assumed that the other party is entitled to claim the property, but rather it shall pass to any one or more children of the deceased. Therefore, if there is no will, upon death, the property of each party will pass directly to their child or children.
Ms Fessi initially filed the action against Comala Remogene, the executor of her husband’s estate, seeking a number of orders, including a restraining order prohibiting the executor from obtaining probate or dealing with the estate.
The wife also seeks an order allowing administration proceedings to be brought against the estate.
She also wants the court to declare her late husband’s will invalid because it was forged and did not have her husband’s signature.
However, defendant Remogin filed a defense and counterclaim seeking a declaration that the prenuptial agreement was in its entirety.
The defendant also stated that there was no interference with the property of the two persons and that the plaintiff had no interest in the estate of the deceased.
Requirements not met
Ms. Fessi disputed this and, in addition to questioning the trust applicable to the estate, she agreed that a prenuptial agreement did exist, but she challenged it on the basis that two of PROSA’s requirements had not been met.
She also asked the court not to grant the declarations sought in the counterclaim.
The action was subsequently set to go to trial on April 17 this year, but on the day of the trial, Ms Facey informed the court that she had only recently hired a lawyer and was unable to proceed with the trial.
A new trial date was set for June in the case, but the judge issued an order requiring Joyce to pay more than $3,252.71 in costs and $165,480 for the defendants by May 9 or her case will be dismissed.
The case was dismissed because Ms. Facey failed to pay within the stipulated time.
However, the judge must deal with the counterclaim to decide whether the prenuptial agreement should be fully enforced.
In her judgment, Shelly-Williams noted that certain preconditions under PROSA must be met in order to determine whether a prenuptial agreement is valid, including that the parties must obtain independent legal advice before signing the agreement and that the legal adviser should certify that the meaning of the agreement was explained to the person who received the advice. In addition, if the agreement is signed on the island, it must be witnessed by a JP or lawyer when the parties sign it.
Ms. Feasey submitted that neither of these criteria was met, but the defendant did not dispute this.
However, the court found that despite these shortcomings, there was no disadvantage to Ms. Feasey.
“The defendant sought to suggest in her evidence that she was prejudiced because she did not read the agreement before signing it. I find it incredible that the defendant, who is described on the marriage certificate as a 48-year-old marketing representative, could sign an agreement involving property she acquired before the marriage without reading it,” the judge stressed.
The judge also noted that while Joyce sought to suggest that her sister-in-law’s presence at the signing caused her undue stress, there was no direct evidence that she felt threatened, intimidated or pressured into signing the agreement by her sister-in-law’s presence.
Attorney Jamila Thomas represented Romogene, while Enid Lee Clarke Bennett and Renae Robinson represented Mrs. Feasey.
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