Property Rights

cerijames

hi all, I wanted to know if anyone can help with a question re property rights. I have an elderly aunt and uncle who have been married 55 years and always lived in the same house. My uncle has a son from a previous relationship. My aunt has dementia and needs care each day. The house is in the sole name of my uncle and we think he has left the house to the son in his will with my aunt able to remain there until her death if he goes first. I want to know whether my aunt has any rights over the house bearing in mind she has always lived there and when they got married it was the “done thing” for the husband to have the house in his name and also deal with the finances. does anyone have any advice or experience with anything similar. Thanks 

Mickey666

What 'rights' do you have in mind?

Sounds like youe aunt has the right to live in the house for as long as she needs to.  She has never owned part of the house and if it has been left to her son then she doesn't have any now.  In other words, nothing has changed as far as your aunt is concerned and she is no worse off than she has ever been.

Why are you asking?  Do you wish to challenge your Uncle's intention to leave the house to his son?

ames1010

Sorry to hear about your worries for your elderly aunt who has dementia. If your uncle leaves the house to his son but in the will states that your aunt is to stay in the house until her passing, then that is what will happen. However, like you- I’d be concerned about what would happen to your aunt if she needed to go into a home for full time care. There is the chance to contest the will under the inheritance act 1975 and that claim has to be raised within 6 months of probate being granted. I hope your uncle has considered what happens to his wife of 55 years if he passes before her but without knowing exactly what the will says, it’s hard to offer more advice at this time. 

As for the previous commentator, don’t dwell on the comments too much. Don’t justify why you are asking for advice in this forum. 

Best wishes 

xylophone

It could well be that Uncle's will was made specifically to protect his son's inheritance while providing for his wife.

If he predeceases her, her right to live in the property is protected.  The clause in the will might simply be a right to occupy up to death or until she no longer needs the property or might provide for downsizing (with any excess capital to be invested to provide an income) etc.

As she would not own the property, its value could not be taken into account should she need means tested care.
Any pension income/savings etc could be taken into account but if below the threshold, the LA would have to fund the care.

cerijames

Ames1010 - that’s exactly our concern. I have no interest in the house or the sons inheritance, I just want to make sure that if my aunt needs residential care she can have quality care and if the house needed to be sold to fund it what would happen if she had no rights. Also we don’t know what the wills say - our assumptions are based on historic discussion my aunt had with my mum. 

Mickey666

ames1010 said:

As for the previous commentator, don’t dwell on the comments too much. Don’t justify why you are asking for advice in this forum.

Obviously the OP doesn't need to justify anything if they don't wish to, but it's a reasonable question to ask. 

Indeed, your own reply suggested a good reason why the OP might want to challenge the will, so it seems strange to also advise the OP not to clarify why they are asking.  If we better understand what the OP is trying to achieve it's likely we can offer better advice - don't you think?

Keep_pedalling

cerijames said:

Ames1010 - that’s exactly our concern. I have no interest in the house or the sons inheritance, I just want to make sure that if my aunt needs residential care she can have quality care and if the house needed to be sold to fund it what would happen if she had no rights. Also we don’t know what the wills say - our assumptions are based on historic discussion my aunt had with my mum. 

If the house has been left solely to her step son that is certainly unfortunate for her as far as choice of care homes is concerned as unless she has substantial other assets she will be relying on the limited choice offered by LA funding. 

Does anyone have power of attorney for her? Although the house might have been solely in his name it was a marital asset and she would have a good claim under the Inheritance (Provision for Family and Dependants) Act 1975. She might have been left the right to live there but that does not help with her long term needs.

MoneySeeker1

Keep_pedalling said:

cerijames said:

Ames1010 - that’s exactly our concern. I have no interest in the house or the sons inheritance, I just want to make sure that if my aunt needs residential care she can have quality care and if the house needed to be sold to fund it what would happen if she had no rights. Also we don’t know what the wills say - our assumptions are based on historic discussion my aunt had with my mum. 

If the house has been left solely to her step son that is certainly unfortunate for her as far as choice of care homes is concerned as unless she has substantial other assets she will be relying on the limited choice offered by LA funding. 

Does anyone have power of attorney for her? Although the house might have been solely in his name it was a marital asset and she would have a good claim under the Inheritance (Provision for Family and Dependants) Act 1975. She might have been left the right to live there but that does not help with her long term needs.

Imo the best way to approach this.

Legally-speaking (because of outdated arrangements made by her husband) the house might look like it belongs to him. But, in actual fact and modern day norms, half the house belongs by right to aunt and I would think it worth looking into that.

As you point out - her having legal access to her rightful half of the house (as owner) might well make the difference between cheapest possible care home and a decent care home. 

So, if aunt herself is happy not to legally own her rightful half and leave things as they are then that is one thing. But, if aunt herself didn't knowingly and willingly agree to, in effect, giving her half away like this - then it's worth investigating this.

Malthusian

Has anyone asked the son if they would be willing to cede the house proceeds to their stepmother to pay for quality care, while still benefiting from any surplus left after their stepmother's death? (Which they are highly likely to, as the average stay in a care home is two years - with a long tail - and it is rare, though perfectly possible, for people to exhaust the entire proceeds of a house on long-term residential care.)

If the answer is "no" talk of challenges to the Will is premature. Not all stepchildren would callously dump their stepmother of 55 years into Overmydeadbody Grove rather than spending what is likely to be a fraction of their windfall on their care. (If it runs out, they wouldn't be any worse off than if the house had been left to their stepmother.)

The OP's uncle's Will could be written to ensure that the trust property can be sold and used to pay for his wife's care until the end of her life, after which it passes to his son. If on his death it doesn't make provision for her, his son can agree to a Deed of Variation.

thepurplepixie

I don't know about the "done thing"  I bought my first house with my husband 50 years ago and it was in joint names, the same went for all my friends/family and some of them had been home owners before me.
Did your aunt and uncle have any children or is there just the step son?  I think it is something you need to get legal advice on, if they had divorced she could certainly have got a share of the house so I would imagine she has some claim but what I, or others, imagine doesn't make it legal.

xylophone

It is not impossible that the Uncle owned the home at the time of the marriage to the aunt - perhaps he was a widower/divorced and it was  the former marital home?