Tenants-in common and property deeds

Creative_One

My father-in-law recently died and in his Will he left his share of his house equally to his son and daughter as tenants-in-common. The other half of the house remains with his spouse. On checking with the Land Registry he made the tenants-in-common agreement in 2009 when the property was Leasehold. In 2011 he bought the Freehold to the property but the deeds did not take into account the tenants-in-common agreement and the deeds of the house now show the property in joint ownership with his wife. This means all of the property will go to his wife. This is clearly an oversight by the Solicitors who arranged the Freehold purchase. Does anyone know if my father-in-law's Will overrides the deeds of the property?

Browntoa

continuation of their other thread


https://forums.moneysavingexpert.com/discussion/comment/72194141#Comment_72194141

Yorkshireman99

Creative_One wrote: »

My father-in-law recently died and in his Will he left his share of his house equally to his son and daughter as tenants-in-common. The other half of the house remains with his spouse. On checking with the Land Registry he made the tenants-in-common agreement in 2009 when the property was Leasehold. In 2011 he bought the Freehold to the property but the deeds did not take into account the tenants-in-common agreement and the deeds of the house now show the property in joint ownership with his wife. This means all of the property will go to his wife. This is clearly an oversight by the Solicitors who arranged the Freehold purchase. Does anyone know if my father-in-law's Will overrides the deeds of the property?

You can't leave something in a will that you don't own. The solution is for the a deed of variation to be executred. However, none of the beneficiaries including the widow are under no obligation to agree to it.

unforeseen

A DOV is pointless. The house, or a share of, doesn't form part of the deceased estate so nothing to vary

Yorkshireman99

Of course! I will get my brain in gear. Thanks for correcting me.

getmore4less

Anyone can do a DOV any time it just documents a gift, issue is it has no benefit for TAX and CGT that death based DOV can have.

As it happens, IF there was a life interest to the spouse and the spouse planed to gift her share the same split, it makes little difference long term other than the asset does not get protected from care fees.

the first thing to check is if the lease and freehold were combined into a single title. if not there could still be a tenants in common lease.

Also a DOV is NOT a change of a will it is change by a beneficiary of anything they end up owning.

AIUI the spouse can sever the joint tenancy and gift the share and get the tax benefits.

http://www.legislation.gov.uk/ukpga/1984/51/section/142

the survivorship falls into the otherwise component of section of 142(1a)

unforeseen

https://www.taxation.co.uk/articles/2001/11/08/1421/replies-queries-4-post-death-planning explains that quite well.

Assuming spouse wants to do a DOV