Ask a Law Question, Get an Answer ASAP!
Hello and thanks for using Just Answer.
My name is ***** ***** am happy to assist you with your enquiry.
You would have a right to remain living in the property, as you are and would be a legal owner of the property. However, your sisters would be entitled (if they wanted to) to apply to Court for an Order that the property be sold, to enable them to receive their entitlement.
It would therefore be normal in this situation that your Mother's Will includes a provision that if she dies first, the property should not be sold without your consent and that you be entitled to remain living there for a slong as you wish. This simple provision will then prevent your sisters ever demanding a Sale whilst you wish to remain living there.
It is really, therefore, up to your Mother to make sure her Will includes the above.
I hope this helps and answers your question.
I need some further clarification and advice. My mother tried to have a provision such as you suggested put into her will but was told it was not possible as I already own 20% of the property under a decleration of trust.
I purchased my 20% of the property in 2002. However having gone through all the paperwork. It appears that in 2011 when my late fathers estate was settled, the property was put into trust, and that we hold the property as tenants in common with mother having an 80% share and myself having 20%. Does the property being in a trust preclude a provision allowing me to live in the property after my mothers death.
The trust was obviously thought to be a good idea by the solicitor at that time, and we went along with it.
However, my mother does wish me to be able to stay in the property, and it is obviously very important to me, as house has been adapted to my need as a disabled person. Is there any way that this can be accomplished legally?
As stated previously, as an owner of 20% of the property, you have a legal right to occupy the property.
However, if your Mother were to die first, your 2 sisters could make an application to Court that the property be sold, so they can get their hands on their entitlement.
I don't know why the Solicitor has said no provision can be put in your Mother's Will that the property not be sold- it is perfectly possible and usual for such a clause to be put in a Will where parties hold the property as tenants in common.
Unless there was a specific Declaration of Trust signed at the time of your Father's death stating otherwise, there is no reason why your Mother can't include a provision in her Will.
I appreciate your comments. The trust declaration Mother and I signed in 2011 is above. Is it the fact that there is a trust, possibly preventing the inclusion of a provision to allow me to remain in the house, for a period of three years, which is what my mother would like to happen?
There is a conflict of legal advice here, and I don't know how to advise my mother in order to get it resolved. It is my mothers will, she would just like me to have the security of a breathing space until I can make other arrangements and have the benefit of being able to access my pension which is not available to me until 2018.
My sisters will probably agree to me staying here until then. However both my mother and myself would appreciate something more concrete which is why she would both like the provision to be placed in the will!
Can you suggest a way forward?
The wording of the Declaration of Trust does not prevent your Mother from including a further provision in the Will that the house not be sold until a certain time in the future or until you agree to vacate/consent to such a sale.
The wording of the Declaration of Trust is merely to confirm your respective percentage shares in the property, so I really can't see why the Solicitor is saying no provision can be put in your Mother's Will.