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Will - Joint Tenants

(10 Posts)
squash40 Wed 12-Feb-14 14:16:20

I was left a share of my father's house by my father but I have just found out that he was a joint tenant with my step mum. From my understanding this means my step mum has been left 100% of his estate. My dad stated in his will that this would be honoured if my step mum remarried, sold the house or died.
The will is invalid as they needed to be Joint Tenants. Has anyone else been in this situation? My father died four years and my step mum has been with someone else for 8 months. The new partner is not in a good financial situation so this is when I decided to look in to this further. I have a good relationship with my step mum and to date we have never discussed the will as there was no need unless one of the clauses took effect.

squash40 Wed 12-Feb-14 14:17:28

Meant to say they needed to be Tenants in common for the will to be valid.

clio51 Wed 12-Feb-14 14:34:16

So does your step mums bf live in the house with her?
If so then half is yours, it states this doesn't it

DietofWorms Wed 12-Feb-14 14:39:14

I think you need to ask a solicitor - it can be complicated. From what I remember, one half of a joint tenancy can only pass on survivorship - you can't separate it out. So I'm not sure how it can be enforced that your SM has to give you 'his' half when she dies. It's not being held on trust - it's all hers. Sounds like he must have been trusting her goodwill (always a mistake) and it doesn't mean anything legally. But I haven't studied Wills/Trusts of land for ages, so you should ask a solicitor who knows about this stuff.

squash40 Wed 12-Feb-14 14:50:28

The new partner hasn't moved in Yet! Not sure if that will happen or if they will buy somewhere together in the near future.

When its joint tenants regardless of any wills written the surviving partner gets 100% of the estate. My dad did his will on the internet without getting proper legal advice. He genuinely believed it was valid at the time. Before he died he gave me his will and not my step mum which I find strange as she was the executor. I do know that Legally I wouldn't have a claim against the will and hope that in future she will carry out my dad's wishes but then again she may not. I just wondered if anyone else had heard of this situation and if they tried to pursue it in some way. There is no need for me to discuss this with my step mum until her circumstances change.

mumblechum1 Wed 12-Feb-14 15:12:10

Unfortunately, as I think you realise, your father's share passed to his partner as they held the property as joint tenants.

In order for the gift to you to be valid, he would have had to sever the joint tenancy.

Had he written his will through a will writer or solicitor you could have sued for negligence as they would have had to advise him to sever the tenancy (and usually deal with the severance). As he wasn't advised, the only thing you may possibly be able to do is appeal to his partner's better nature and ask for her to give you part of the property in her will. I don't think there are any other grounds for contesting the will assuming that your father had mental capacity and that you aren't financially dependent upon him, and that the will was properly signed etc.

squash40 Wed 12-Feb-14 15:59:25

Hi mumblechum, I have taken legal advice recently as I made my own will. This is when I found out about joint tenants. I have a similar situation to my father's as my husband has children from a previous. We opted for tenants in common.
I know when my father wrote his will he would not have known about joint tenants or tenants in common and I am 100% certain my stepmum wouldn't have known anything about this then or even now. It makes me think how many people don't know about this! My father left a small amount of money to others which she paid out when he first died so she believes it to be valid.
I was told that there is a possibility that there could be something that can be done through equity law or case law but this sounds expensive.
As I have a good relationship with her then she may respect his wishes if not that is something she will have to live with. I just thought this situation may help others.
My father had his faculties except for the last week when he was in a coma. I am not a dependent. Thank you for your advice.

mumblechum1 Wed 12-Feb-14 16:59:24

I hope everything works out for you.

I'm a will writer and increasingly severing clients' joint tenancies not only to ensure that life interest/property protection trusts work but also to avoid care home fees.

squash40 Thu 13-Feb-14 12:40:40

I can imagine care home fees can be a problem for a lot of people. I hope this if people read this that they do go to a will/writer to obtain advice rather than doing cheaper internet wills and not understanding the difference between Joint Tenants and Tenants in Common as it is so important to be aware.
I will continue to have a relationship with my stepmum without discussing the will as the relationship means more than any money. All I can say is my dad thought that his will was 100% genuine so I take comfort in the fact that he intended to look after myself and my siblings. This situation has highlighted it for my mum, she is a joint tenant with my stepfather and she wasn't even aware of this despite having her will drawn up many years ago through a solicitor, it was never pointed out to her.
Thanks again for your comments and advise.

mumblechum1 Thu 13-Feb-14 13:15:31

squash40, if your mum needs any advice about making a new will to avoid the same thing happening, I would be very happy to provide advice at no charge (I'm a will writer). It sounds as though she would like to give your stepfather a life interest in her property and in order for that to take effect she will need to sever the joint tenancy as well as specifically include the trust within her will.

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