Property advice

[usernamealreadytaken]

Can anyone offer any advice on a potential property dispute, please?

FIL has been married to SMIL for around 35 years; second marriage - 2 children from first marriage and one from second, all grown up. Age difference of 24 years is relevant.

SMIL and DD are originally foreign nationals and did not move to the Uk until DD had finished school in their home country - DD came first and SMIL followed a few years later.

During the marriage FIL bought a house in the UK in his sole name, paid the mortgage and house is now fully owned. When SMIL moved here I think there were maybe a few years left on mortgage but she didn't contribute and does not contribute to household bills, just her own expenses (food and broadband).

During the marriage SMIL bought a house in her home country in her sole name; she did work but also received generous support from FIL.

SMIL home is now probably worthless and she is unable to return so is disregarded.

FIL's will stipulates the house to be sold on his death and the estate divided equally between SMIL and the three children; his thinking behind this is because of the age gap he would effectively be disinheriting his children from first marriage if he left house to SMIL. Apparently SMIL was unaware of this and assumed she would inherit on his death.

FIL is elderly and in early stages of dementia and has also suffered several TIAs and a stroke. FIL has now received a letter from Land Reg applying to transfer half the house in to her name. He does not wish to do this, but still lives with her and the situation is uncomfortable for him.

Can anyone advise on where he stands? Does his DW's claim on the house trump FIL's wishes (his will was properly written by his solicitor, it's not a self-written one)?

Sorry it's so long, and thanks for your help 🙏🏻

So your FIL plans to make his wife of 35 years homeless on his death? I'm not surprised there's an atmosphere in their house! Or will 1/4 of the proceeds of his estate be enough to buy her somewhere decent to live?

It seems perfectly reasonable that she should inherit everything on her husband's death after such a long marriage. But surely your FIL's will could have stipulated that she could remain in the house during her lifetime, and on her death it be sold and the proceeds distributed amongst the children?

Does his DW's claim on the house trump FIL's wishes
His wife can actually take the matter to Court if he dies if his will is left as is so all the children, who are adults, can be left with nothing as lawyers cost a lot.

He shouldn't sign the letter instead your FIL needs to go talk to his wife and go back to a solicitor asap.

He needs to tell his wife and get the solicitor to:

1. Change the ownership of his house to tenants in common where he owns 2/3 and she owns a 1/3.
2. Next he needs put his house in trust so his wife can live in it until she dies. If she sells it before then the proceeds should be divided between all the 3 children equally.
3. Then he needs to leave his 2/3 share to each of his children (or their children, so his grandchildren)
4. With his other assets he needs to decide how he is going to divide them but the vast majority should really go to his wife so she has money to live on and can maintain the house. He should also leave any pension benefits to his wife. As they don't form part of the estate he just needs to inform the pension trustees that it is left to his wife.
5. He should then encourage his wife to write a will and leave everything to her own child (or that child's children so her grandchildren.)

Yes her daughter may end up with more assets from him but his assets are joint with his second wife, and his 2 children have a different mother who they should inherit from.

After such a long marriage doesn't 50% of the property belong to SMIL anyway (much like in divorce who's name it's in is totally irrelevant) so the most FIL could do is leave his 50% share to the 3 DC with no provision for SMIL to remain in the house and effectively leave it up to them to fight it out if it comes to it?

@TheTeenageYears

After such a long marriage doesn't 50% of the property belong to SMIL anyway (much like in divorce who's name it's in is totally irrelevant) so the most FIL could do is leave his 50% share to the 3 DC with no provision for SMIL to remain in the house and effectively leave it up to them to fight it out if it comes to it?

No. Redwingboots has it covered.

If the property is in his name only and she isn't divorcing him. He's entitled to do what he wishes with his assets.

She can contest it but it will eat up the money quickly.

The best way to resolve this is outlined above. Asap. Today preferably!

Thank you all for your advice and input.

For clarity, they are legally married but do not have a "traditional" marriage; they did not live together until SMIL moved here to follow DD. Since moving here she has not contributed to the house and does her own thing; she works and socialises, cooks separately and spends very little time with FIL. Several times when he has been seriously ill or recovering from health issues she has gone abroad and left it to older children to look after him. I do think in their own ways they love or at least care for each other, but she does not look after him.

The current will splits everything equally four ways between SMIL and the three children. His original will split everything but allowed SMIL to live in the house for as long as she wanted and then it would be divided either on her death or on sale; a number of years ago she told him quite categorically that she would not want to live in the house and would sell immediately, so he changed his will at that time.

SMIL will get his pensions as spousal pension was written in. He's not trying to leave her homeless or destitute; she is considerably younger, has worked and failed to save anything for her own retirement, choosing instead to take regular exotic holidays. His view when changing his will was that he wanted his older children (who he didn't help to buy property) would benefit and not be effectively disinherited.

Out of interest @RedWingBoots, why do you suggest 2/3 1/3 split rather than 3/4 1/4?

Would your advice be different if I was asking about SMIL's other property? Although it's currently probably not worth anything, that could change - with it being abroad I don't know how it could be taken in to consideration?

Sorry, trying not to drip-feed - current value of estate divided four ways would give her about enough to buy a modest property outright.

Good advice from RedWingBoots on a reasonable way of settling this.

Of course, the wife always has the option to divorce him, and their assets be split through that.

So out of four self-sufficient adults the wife is more entitled to property after 35 years than children who have been children of the owner for 60 years? Poor FIL is so upset that his children won't be provided for :-(

So out of four self-sufficient adults the wife is more entitled to property after 35 years than children who have been children of the owner for 60 years?

Yes because a marriage is a partnership in many ways including financial.

You are also ignoring that the couple have been married a long time - 35 years is a long marriage. So it doesn't matter which spouse's name the assets are in as they belong jointly to both of them.

You are also ignoring that the 2 older children have their own mother to inherit from. Likewise the younger child has her own father. (If they are dead to put it bluntly tough luck.) So to make it fair they should all left an equal share of the main family home.

(If the FIL and step-MIL are sensible they should by-pass their adult children and leave it to that child's share to that child's biological/adopted children if they have any. This is to help keep the money in the family and stop that adult child's spouse walking off with it.)

The step-MIL can be left everything else if not, as already pointed out, the step-MIL can either:

1. divorce the husband and get 50%, or,
2. wait until he dies then take the children to court to get more.

Both ways will make lawyers richer.

Sorry I got confused about the youngest child.

Anyway the main aim is to stop step-MIL going to court. Leaving her 1/4 would mean she is likely to go to Court. Leaving her slightly more is likely to stop her especially if she also gets most of the other assets.

So out of four self-sufficient adults the wife is more entitled to property after 35 years than children who have been children of the owner for 60 years? Poor FIL is so upset that his children won't be provided for

So the children are in their 60s? And self-sufficient? Why do they need to be provided for? They're not dependents are they?

Am struggling to understand why you think your FIL's children have a stronger claim to his estate than his wife of 35 years 🤷‍♀️. You acknowledge that, while they don't have a conventional marriage, they probably love each other.

@StrawberryPot SMIL is same age as the older children and is equally self sufficient, and owns her own property (but it's abroad and she doesn't want to live there as DD is here) - she has no intention of making this jointly owned with FIL.

The older two's mother doesn't really have anything to leave them, which is partly why their father wants to make sure he leaves them something - he helped both SMIL and DD buy properties, but not his older two.

I suspect that no court would evict FIL from his home while SMIL is working, has a property of her own and has all but separated from FIL except legally.

It's just a horrible mess.

DH has children from a previous relationship and we have both provided for them in our wills, I just can't see why SMIL wouldn't do the same.

I guess part of my confusion arises from why the solicitor (who is also executor) would draft a will which is potentially not executable in accordance with the wishes expressed.

The notice received from Land Reg is a b94-1 notice of an application for home rights, which seems to indicate protection in the case of divorce, so we're not sure whether SMIL is actually filing for divorce 😢

DH is booking a call with the solicitor to see how things stand.

SMIL is same age as the older children and is equally self sufficient, and owns her own property (but it's abroad and she doesn't want to live there as DD is here) - she has no intention of making this jointly owned with FIL.

Why is SMIL's age relevant?

You said earlier that the property abroad is probably worthless so why are you now suggesting otherwise?

@StrawberryPot age is relevant as it means she will likely live as long as the two children so they will never inherit as intended.

Regardless of the worth of her property she has it and it's available to live in. If it were jointly owned and FIL could leave a share to the children they could potentially use it for family holidays. Currently SMIL uses it for holidays or let's her family live there.

Sorry @StrawberryPot , I also meant to say I mentioned age in response to your comment that the children were in their 60s and not dependent - she is of a similar age and is not dependent, nor does she support FIL. It's hard to explain as I said before, they are legally married but more like house mates; they do very little together or for each other as they've never really lived together in most of the time they were married, just the last ten or so years.

If the will doesn’t make proper provision for the spouse of 35 years she can make a claim and she will win. Arguably one quarter (unless it’s a large estate) would not suffice.

And surely these “children” you are so concerned about inheriting are 60 somethings now with houses and marriages of their own ?!

@MsTSwift one is, one isn't.

@MsTSwift

If the will doesn’t make proper provision for the spouse of 35 years she can make a claim and she will win. Arguably one quarter (unless it’s a large estate) would not suffice.

This is my point

A wife, especially one that has been in a long marriage however ever unconventional, has a bigger claim on a husband's estate than independent adult children.

The ages of the adult children don't come into it.

Your FIL would have been better giving some of his assets away to his older children while he was younger, as after 7 years they no longer form part of his estate.

I guess part of my confusion arises from why the solicitor (who is also executor) would draft a will which is potentially not executable in accordance with the wishes expressed.

He (probably) didn't give the solicitor all the relevant information and ask correct questions.

Lots of people, particularly older men, will not give professionals all relevant personal information likely due to pride.

Your FIL is better of putting his older children as the executor as it saves his estate costs regardless of whether the will is contested or not. Unfortunately some solicitors as executors rip people's estates off. Executors can get help to sort out an estate or simply refuse to do their duties.

My own mother and other older people who didn't have straight forward affairs I know had their wills prepared by solicitors made a point of asking if it could be contested and how to minimise the chance of that. They also ensured the solicitor wasn't the executor so there was nothing in it for the solicitor apart from the fee for writing the will.

DH has children from a previous relationship and we have both provided for them in our wills, I just can't see why SMIL wouldn't do the same.

You have no legal obligation to provide for your husband's children even if they are under 18 unless you legally adopted them. If you died intestate they would get absolutely none of your assets.

My parents never left anything to their step-children, I'm not and neither are lots of my friends who are step-parents. In fact in some cases trusts have been written so if a spouse remarries and has more children, the new partner and children don't get a share of the deceased spouse's assets. So you shouldn't expect your step-MIL to leave her step-children and her step-grandchildren anything.

This is why your FIL needs to leave part of his property in trust to his children that have a different mother (or preferably their children so his grandchildren)

@RedWingBoots

Does his DW's claim on the house trump FIL's wishes His wife can actually take the matter to Court if he dies if his will is left as is so all the children, who are adults, can be left with nothing as lawyers cost a lot.

He shouldn't sign the letter instead your FIL needs to go talk to his wife and go back to a solicitor asap.

He needs to tell his wife and get the solicitor to:

1. Change the ownership of his house to tenants in common where he owns 2/3 and she owns a 1/3.
2. Next he needs put his house in trust so his wife can live in it until she dies. If she sells it before then the proceeds should be divided between all the 3 children equally.
3. Then he needs to leave his 2/3 share to each of his children (or their children, so his grandchildren)
4. With his other assets he needs to decide how he is going to divide them but the vast majority should really go to his wife so she has money to live on and can maintain the house. He should also leave any pension benefits to his wife. As they don't form part of the estate he just needs to inform the pension trustees that it is left to his wife.
5. He should then encourage his wife to write a will and leave everything to her own child (or that child's children so her grandchildren.)

Yes her daughter may end up with more assets from him but his assets are joint with his second wife, and his 2 children have a different mother who they should inherit from.

This is precisely what my mum did with her second husband. Me and my siblings were fine with that - we wouldn’t want to see my SFIL homeless!!!

@usernamealreadytaken

So out of four self-sufficient adults the wife is more entitled to property after 35 years than children who have been children of the owner for 60 years? Poor FIL is so upset that his children won't be provided for :-(

An inheritance isn’t a right. If the children are in their 60s, surely they are capable of providing for themselves? He’s leaving them 1/4 of his house which as you’ve pointed out is enough to buy a ‘modest’ house.

I guess part of my confusion arises from why the solicitor (who is also executor) would draft a will which is potentially not executable in accordance with the wishes expressed.

A solicitor can advise the client if the terms of the proposed will make it vulnerable to challenge, e.g. because it doesn't make adequate provision for family and dependants. If the client still wants to go ahead with the will on those terms, the solicitor will draw up the will in accordance with the client's wishes.

As others have said, in the situation described SMIL is likely to have a claim under the Inheritance Act. She would receive as much as she would have got had the marriage ended in divorce.

After such a long marriage doesn't 50% of the property belong to SMIL anyway (much like in divorce who's name it's in is totally irrelevant) so the most FIL could do is leave his 50% share to the 3 DC with no provision for SMIL to remain in the house and effectively leave it up to them to fight it out if it comes to it?

No. Property ownership does not change regardless of the length of the marriage. The property would be in the pot to be divided between them if they divorced, but it still belongs 100% to FIL.