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Original poster

Wills - what happens if....

18 replies

Yohohaha · 21/04/2022 11:17

Someone dies, leaves their house to their children but their spouse is still alive and living in the house. Not jointly owned, and nothing specified in will to allow for spouse to continue living there. (Let's say there was some relationship difficulties).

Waiting to hear from solicitors so just being impatient. Not that we would intend to ask the in law to leave the house but just would like to know where we stand legally.

Thanks

OP posts:
Babyroobs · 21/04/2022 12:54

I presume the spouse is not the children's parent ? I guess either the spouse stays in the property rent free, or they pay rent to the children, or they move out. Obviously they could be alive for years, so something needs to be agreed. Does the spouse have the means to pay to live elsewhere?

runnerbeany · 21/04/2022 12:56

Which country do you live in? UK? If so, which of the constituent countries?

Original poster
Yohohaha · 21/04/2022 18:29

Yes in UK, and no spose is not a parent of the (adult) children. Spouse more than likely has their own finances in order but I imagine not enough to buy elsewhere

OP posts:
HollowTalk · 21/04/2022 18:31

Wasn't there anything in the will about that? Often people will specify the length of time their partner can stay in the house. What's your relationship like with the in law? Did they know what the will stated?

Peeeas · 21/04/2022 18:35

Spouse would probably be advised to make a 1975 Act claim against the estate, if not properly provided for...

PortiaFimbriata · 21/04/2022 18:43

In theory you can evict them but in theory they can also make a claim for "provision for dependents".

Messy and expensive, so you'd be best advised to reach some kind of mediated agreement about how long they can reasonably stay in the house.

Is there a signed letter with the will explaining why they've disinherited their spouse? that would help.

WhereWasThatFrom · 21/04/2022 18:54

I presume the house was owned solely by the husband.
Has the surviving spouse got any reason to think they might have a claim on the house such as contributing to the mortgage or something like that?

Also, when was the will written? Was it written before the husband married the wife? If so the will will be revoked. I guess you know that though!

Peeeas · 21/04/2022 19:01

WhereWasThatFrom · 21/04/2022 18:54

I presume the house was owned solely by the husband.
Has the surviving spouse got any reason to think they might have a claim on the house such as contributing to the mortgage or something like that?

Also, when was the will written? Was it written before the husband married the wife? If so the will will be revoked. I guess you know that though!

They're the spouse, they don't need to show contribution!

HollowTalk · 21/04/2022 19:27

@Peeeas

They're the spouse, they don't need to show contribution!
But if he was written out of the will and had made contributions then that would be very different, wouldn't it?
Peeeas · 21/04/2022 19:44

The test when making a claim on the estate is whether adequate financial provision had been made for dependants (like on a divorce).

Contributions might I guess be relevant if they've been made and not reflected in the title, but we're not told that's the case here.

The children would probably be advised to come to an arrangement with the spouse to avoid costly litigation.

WhereWasThatFrom · 21/04/2022 19:53

@Peeeas

The test when making a claim on the estate is whether adequate financial provision had been made for dependants (like on a divorce).

Contributions might I guess be relevant if they've been made and not reflected in the title, but we're not told that's the case here.

The children would probably be advised to come to an arrangement with the spouse to avoid costly litigation.

Sorry if I got it wrong. I've no legal qualifications. I just wandered if it might help her case if she could show that she had helped pay the mortgage or something....
tbf I think everyone on the legal threads should have to declare whether they are legally trained or not 😅
Original poster
Yohohaha · 21/04/2022 19:57

We know very little about legalities of any of this at all so sorry if I sound ignorant. First time ever having to deal with any of it so this is all just out of interest as to what might happen.

Relation with the in-law was not good, but at the same time no intention to make them homeless. What would happen with inheritance tax if they were to stay in the house? We don't need the money any time soon but couldn't afford to pay inheritance tax without selling.

Parent owned the house before they married so no contributions made.

We have not seen the will yet (so this is all theoretical and may be incorrect) but know there was one made at some point and the estate was left to the children but not sure exactly when. Also know there was no updated will including the spouse. Interesting it would be revoked if it was made before they married.

OP posts:
Peeeas · 21/04/2022 20:05

If the will is valid (i.e. not revoked by later marriage), then you (the children as beneficiaries) could look at varying it (within 2 years of death) to give the spouse a life interest (right to live in the property during lifetime). That would attract the spouse exemption from inheritance tax, but the capital could be ring fenced for the children on the spouse's death, or when the spouse no longer wished to occupy. A good private client solicitor should be able to advise on the options when the will is available.

MsTSwift · 21/04/2022 20:07

Will revoked by marriage unless will made in contemplation of marriage to the named spouse.

if no provision made for a spouse in a will they should make a claim under the IPFD act 1975 and the spouses claim would succeed - they would at least be awarded what they would have got in a divorce. You can’t just cut out a spouse.

KateTheEighth · 21/04/2022 20:08

Depends which part of the UK you're in

Personally I'd wait for proper legal advice although I know it's difficult waiting to hear about something so important

Original poster
Yohohaha · 21/04/2022 21:00

Thanks all it's made it a bit clearer so far, we have no expectations of what we would gain, if anything. If they had left it all to their spouse we would have no issue with that either but just would like their wishes to be followed and were aware that at least the house was to be left to the children. Appreciate the difficulties that are going to come with all of this and certainly not going to try and cause any hardship for the spouse. Hopefully will find out the situation soon!

OP posts:
Xenia · 22/04/2022 08:25
  1. Was the will made before the marriage?
  2. If it were, if current spouse excluded from will that is fine as you can leave how you like in English law (remember Scotland differs from English law in lots of ways so do not assume all the same) BUT as someone said above if you leave a spouse out of the will they are very likely to be able to bring a 1975 Act claim.
This is one reason I would never move a man into my house as I want my adult children to have it 100% when I die.
MsTSwift · 22/04/2022 09:22

Absolutely - if spouse is living there and has few other resources you can’t just boot them out and take the house! They will make a claim and likely be given at least a life interest in the house but depends on the circumstances

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