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Joshua
Joshua, Lawyer
Category: Family Law
Satisfied Customers: 25425
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi My husbands parents have decided to transfer the deeds

Resolved Question:

Hi
My husbands parents have decided to transfer the deeds of their property and also all the contents of their wills to the eldest grandchild. My husband and I have a daughter of 22. His sister has 2 daughters 25( the inheritor) and 17. This has upset my husband and his sister as they both believe that this is unfair on the other 2. Could you advise please?
Submitted: 3 years ago.
Category: Family Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

Has your husband asked his parents why they have decided to do this please?

Customer:

Yes,at first they would not give an answer. Then they said it was because he already has a lot of money(which is completely untrue). We both feel that is because they have never liked me. Also they told his sister that they didn't want her to have any because her partner(who they don't like either) would spend it all.

Joshua :

Thank you. Do you know are they proposing to actually transfer their house into the grandchilds name now - i.e. before their death or is all of this proposed in their will?

Customer:

Yes i believe they are in the process of, or have already done so.

Joshua :

Thank you. Is this their main house? Is there to be any condition do you know to the gift - such as that they have a right to continue to occupy or are you unsure?

Customer:

Yes this is their only property. I am unsure, but would think that they would have included the right to occupy.

Joshua :

Thanks. From their point of view this could be a very bad idea. First unless they have a formal life interest trust they could be kicked out of their home by grandchild. Second it can be very bad from a capital gains tax point of view to do this as they may lose their capital gains tax free allowance in relation to the house. Also if they are motivated by inheritance tax savings the gift may ineffective unless they also pay a market rent. However that is from the perspective but I mention it in case it is useful in persuading them otherwise. It is unlikely a solicitor with any specialism in private client matters would be advising them this is a good idea.

Joshua :

In terms of where this leaves your husband and his sibling. The starting point is that everyone has a right to decide to whom to make gifts of their assets and there is little if anything that can be done to stop someone making a gift of property during their life. If his parents have made any assurances to your husband previously regarding the property they propose to gift away then he may be able to rely on such assurances but if they have not done so (which I assume from what you say is the case) then this does not assit.

Joshua :

*assist

Joshua :

In respect of such assets that the parents do not give away prior to their death but rather give away under their will either your husband and his sister could seek to challenge the will. Thre would be two bases on which to potentially challenge the will which are undue influence or lack of testamentary capacity. Undue influence is a challenging case to establish because it must be proven and which involves the need to establish coercion. This is difficult to prove. For this reason most challenges are pursued on the grounds of a lack of testamentary capacity on the part of your parents in law when they made the will. This can be easier to prove than undue influence particularly as there was a significant case of Gill v RSPCA which was a case involving a lady who left everything to the RSPCA disinheriting her daughter. The Court of Appeal found against the Will because Mrs Gill lacked knowledge and approval of its contents even though she had done her best to exclude her daughter. The Court of Appeal found that lack of knowledge and approval had been established, there was no need to consider the issue of undue influence.

Joshua :

The courts have shown themselves more ready to overturn wills which seek to exclude children. At that point depending upon the circumstances it mahy be that your husband and his sister can attempt to argue that although there was a legal transfer of the property there was no transfer of the beneficial title (the money in the property). This may not be possible and is unlikely to be easy but it is not necessarily impossible.

Customer:

Several years ago when the property was first purchased, my husband's father told him that his mother wanted to leave everything to the eldest grandchild and their wills were being written. This i believe was in 1994. Around three years later my father-in-law told my husband that he had changed his and would be leaving his half to my husband. He said that the new will was with the solicitor and that if anything happened to him then he would be notified. We have now learnt that this solicitor died a few years ago. When my husband asked his father why he had told him this, when he clearly had not, his father would not answer him.

Joshua :

For the present besides trying to convince them that the transfer is not sensible for some of the above reasons there is not a great deal that can be done whilst they are alive to challenge any gift they wish to make

Customer:

Also when my husband and his sister argued that any asset should be left to all 3 grandchildren equally, my husband's mother noting how upset they both were said they would change it then to the 3 of them. However apparently my father-in-law flew into a rage and said that he would not change anything

Joshua :

It is most strange that his parents seem to be contriving to arrange their affairs so as to create potential conflict. As to their motives these may only ever be known by themselves. English law allows any person to dispose of their property as they wish and the only effective challenges that can be brought in law would have to be brought after their death unless your husband has evidence of an assurance on which he has relied to his detriment made by one or both of his parents - e.g. I will elave you share in my property if you look after us or if you maintain the property. Based on what you say they do not appear to have made such an assurance to him.

Customer:

ok thank you very much for your time.

Joshua :

A pleasure. I am sorry there is no definitive action your husband can take at this time. However there can be steps your husband can consdier in respect of his parents will after their passing as above.

Customer:

yes thank you again for your advice.

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though.

Customer:

yes thank you very much

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