Deed of variation - right to occupy v life interest v need advice?

DisappointedSiblings

Mrs_pbradley936 said:

I think you should consult your own solicitor. Worth the price of a consultation fee - oh and get a decent firm that has experience in contentious probate matters. That way you will know if you have any options and what they are. I suppose it depends on how old he is because if in his 80s or 90s it could all be over before long but if in his 60s this could go on for years.

Thank you! Good point. And what happens if he remarries??

DisappointedSiblings

Silvertabby said:

What a nightmare, on top of the loss of mum.  My sympathies.

If this chap does need the siblings permission to remain in the house, then it does sound like mum had intended that the house be sold and the estate settled within a reasonable time scale, especially when you add in the bit about all bills and expenses being paid for by the estate.

I'm not an expert, but surely allowing him to stay would mean that the residual funds couldn't be distributed to the named beneficiaries because they would have to be permanently reserved to pay for the ongoing house costs? And what happens once the funds have been exhausted?  Will this chap then expect the siblings to pay the bills for 'their' house?

Thank you for your sympathies. It's been a v difficult time and this does not help. Interesting your take, thanks. V helpful.

xylophone

The will was written by or with the same firm of solicitors. So not a DIY effort.

I'm very surprised at this.

DisappointedSiblings

xylophone said:

The will was written by or with the same firm of solicitors. So not a DIY effort.

I'm very surprised at this.

I am not at all impressed by the solicitor at all. He seems v inexperienced, though he probably didn't help write the will. It was dated a few weeks after they married, so expect it was done to appease the new husband. Maybe mum is having the last laugh! But honestly it's not very funny.

xylophone

I am not at all impressed by the solicitor at all. He seems v inexperienced, though he probably didn't help write the will. 

It may be that  there are notes on the file which may guide him as to mother's thoughts and intentions when the will was made.

If she intended  her  widower to enjoy a life interest in possession, I'd  have thought that she would have made this clear to her solicitor and the will would have been drafted accordingly.

DisappointedSiblings

xylophone said:

I am not at all impressed by the solicitor at all. He seems v inexperienced, though he probably didn't help write the will. 

It may be that  there are notes on the file which may guide him as to mother's thoughts and intentions when the will was made.

If she intended  her  widower to enjoy a life interest in possession, I'd  have thought that she would have made this clear to her solicitor and the will would have been drafted accordingly.

That's interesting. We are starting to think she intended for the house to be sold, otherwise surely the will would have said 'until death' or given a time limit?? I believe her previous will would be invalid after the remarriage? And I am guessing that he will have insisted a new one was drawn up, she was a smart cookie (mostly), and seemingly had the will drawn up by a solicitor who should have advised her of the potential question mark? Who knows though. So as it's not a life interest clause, it suggests that she expected him to move. He could buy something smaller with his share easily. Appreciate your input thank you!

doodling

Hi,

I may have missed but:

DisappointedSiblings said:

Her will leaves half the house to her children and half to her husband. It states that her husband is allowed to occupy the house without rent, at the cost of her estate until the property is sold.

What is the exact wording of the will because it is very unlikely to be what you have written in bold?  I suspect that there is some confusion in the communication to you of the wording of the will.

If the will actually states that, or exactly that meaning then its effects will be very strange.  The effect would be to create a trust encompassing all of your mothers assets with the (sole) purpose of funding her husbands occupation of the property.  This would effectively mean that all of your Mum's assets except the house, furniture and anything else directly relevant to occupying the house would need to be sold and the money put aside to fund her husband's occupation - her husband wouldn't have direct access to any of it, except to spend on his occupation.  Presumably if he could no longer occupy the house (e.g. he needed care) then you could force a sale at that point.  I do however think that all this is somewhat unlikely.

I think it is more likely that the house has simply been left to the both of you in equal shares and it is your choice whether to allow the executors to give you half a house (with the husband occupying it) or whether you want it to be sold and you get half the money.  By the sound of it you want the latter option.  Even if you end up with the former option, it doesn't stop you seeking a court order for sale of the house at a later date.

I also suspect that the bit about "at the cost of his estate until the house is sold" is simply to make it clear that he doesn't need to pay rent, gas, electricity, etc. whilst the house is being sold.  It doesn't seem to say anything about who has the right for force a sale.

The other likely option is that the husband has been left a life interest, this means that effectively the house is the husband's until he dies, at which point you get your half and he gets his half.  Sometimes life interests allow for moving / downsizing in some way as well.

The key thing to do is to find out what the will actually says and if there is any uncertainty then consult you own solicitor.

Flugelhorn

DisappointedSiblings said:

The will was written by or with the same firm of solicitors. So not a DIY effort. Useful points here thank you!

they need to sort it out then, there are real problems with it - hopefully they have notes about intent etc

DisappointedSiblings

Thanks everyone. Really appreciate your thoughts and input. Going to get some legal advice and send the solicitor a list of Qs before we make a decision. Lots to consider and lots of unexpected implications.

DisappointedSiblings

doodling said:

Hi,

I may have missed but:

DisappointedSiblings said:

Her will leaves half the house to her children and half to her husband. It states that her husband is allowed to occupy the house without rent, at the cost of her estate until the property is sold.

What is the exact wording of the will because it is very unlikely to be what you have written in bold?  I suspect that there is some confusion in the communication to you of the wording of the will.

If the will actually states that, or exactly that meaning then its effects will be very strange.  The effect would be to create a trust encompassing all of your mothers assets with the (sole) purpose of funding her husbands occupation of the property.  This would effectively mean that all of your Mum's assets except the house, furniture and anything else directly relevant to occupying the house would need to be sold and the money put aside to fund her husband's occupation - her husband wouldn't have direct access to any of it, except to spend on his occupation.  Presumably if he could no longer occupy the house (e.g. he needed care) then you could force a sale at that point.  I do however think that all this is somewhat unlikely.

I think it is more likely that the house has simply been left to the both of you in equal shares and it is your choice whether to allow the executors to give you half a house (with the husband occupying it) or whether you want it to be sold and you get half the money.  By the sound of it you want the latter option.  Even if you end up with the former option, it doesn't stop you seeking a court order for sale of the house at a later date.

I also suspect that the bit about "at the cost of his estate until the house is sold" is simply to make it clear that he doesn't need to pay rent, gas, electricity, etc. whilst the house is being sold.  It doesn't seem to say anything about who has the right for force a sale.

The other likely option is that the husband has been left a life interest, this means that effectively the house is the husband's until he dies, at which point you get your half and he gets his half.  Sometimes life interests allow for moving / downsizing in some way as well.

The key thing to do is to find out what the will actually says and if there is any uncertainty then consult you own solicitor.

That is the wording. There is some money in her residual estate that would/could fund his occupancy. There is no wording relating to a life interest. He actually told us that he would inherit everything and then on his death it would be split, but that isn't what her will states. Lots of uncertainties so we will be seeking legal advice. Thank you.