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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33538
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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My sister, aged 71, was divorced 40 years ago, left with two children, and throughout thos

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My sister, aged 71, was divorced 40 years ago, left with two children, and throughout those 40 years, he never paid any money for the children, the house or my sister.
He has now died, and my sister realises that their house remained in joint names.
How does she ensure that [email protected]@ does not pass to a third party?
Submitted: 1 year ago.
Category: Law
Expert:  Harris replied 1 year ago.
Hi, thanks for your question. I am a qualified solicitor.
Does your sister know whether the property is held as joint tenants or tenants in common, and whether there was a will in place when he died?
Basically, if the property was held as joint tenants, his share automatically passes to her upon his death. If it was held as tenants in common then his share will pass to whoever is named on his will, or if there is no will then it will pass to beneficiaries under intestacy rules.
Customer: replied 1 year ago.
I am aware of the difference between types or tenancy. I have asked my sister to ascertain the details of the divorce settlement. What I know at the present is that there is a will, leaving his property to his partner. Clearly if the tenancy was not joint, there is a possibility that the partner may have claim to half, or a proportion of, my sister's home, despite the fact that, as I pointed out earlier, he NEVER paid my sister any alimony, so at the very least there is a moral case for her to be freed from this situation.
My question was, in the worst-case scenario, what precedents, case law etc, are there to help her?
Customer: replied 1 year ago.
I have responded in the above box, but to summarise; I am aware of the differences in tenancies; what I want an answser to is, what can my sister do if, at the worst, it appears that her ex's partner has a claim, via his will, to a part of my sister,s home, bearing in mind that, as I said earlier, he NEVER paid on the Court order from the time it was made. There is, at the least, a strong moral case, for her having the house given over to her, but what precedents in case law are available to her to help?
Expert:  Harris replied 1 year ago.
Thanks for the further information.
In relation to inheritance please confirm how long the ex-husband and partner were together, whether they have any children together and whether the partner was financially dependent on the ex-husband.
If the partner was living as "husband and wife" for a full two years immediately prior to his death and was financially dependant on him then she may have a claim even if the title was held as joint tenants. However, the partner would need to make an application to Court to proceed with this. The case law in this can be referred to in the case of Churchill v Rose [2002] EWHC 3230 (Ch).
Whether the title is held as joint tenants or tenants in common, your sister would have benefit of her share of the property.
Expert:  Clare replied 1 year ago.
HiThank you for your questionMy name is ***** ***** I have been a family lawyer for 30 years.The case my colleague refers to is actually Churchill - v Roache - but in any event is not relevant in these circumstances.Before considering the worst case scenario I need to know how much the property is worth and whether or not your sister has remarried
Customer: replied 1 year ago.
Sorry for delay - we just had a local power cut.
1. I am not sure how long the ex and his partner were together, but I do know there were no children.
2. They were togethr for two years prior to his death, but as both were retired, living on pensions, the partner could not be said to have been financially dependent on him.
3. for most of his life, the ex was able to manage without working (major reason for the divorce) so it is unlikely that the partner was any more financially dependent upon him than my sister - who wasn't.
4. My sister never remarried, nor is she/has she been in a living -together situation.
5.The house is estimated to be worth about £120k (in South Yorkshire).
Lastly for information; after the separation, although a court order for maintenance was in place, due to my sister's ex-husband failing ever to pay, she was obliged to turn to Social Security for her income, supplemented, as she was able, by part-time earnings.
She retains a wealth of information, such as enforcement proceedings records, to support the contention that he failed to comply with the court order.
Expert:  Clare replied 1 year ago.
What did the court order actually say?
Clare, Solicitor
Category: Law
Satisfied Customers: 33538
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
Clare and other Law Specialists are ready to help you
Customer: replied 1 year ago.
I'm sorry, I can't answer the question at the moment as I don't have the papers - my sister is getting hold of them.
I think if I knew what the terms of the divorce were, I probably would not be asking advice.You're right about the case of Churchill; that is concerned with wills. Unfortunately, as I have been retired for 20 years, I can no longer access Halsburys either.
Allen Swallow
Expert:  Clare replied 1 year ago.
The Case would only have been relevant if your sister's ex had been living i a home that your sister still jointly owned - which is not the case of course.As an overview IF it is the worst case and they were Tenants in Common all is not lost at all.Your sister could still make a claim against the Estate using the Inheritance (Provision for Family and Dependents) Act with an excellent chance of success (no court action is ever guaranteed of course!)I hope that this is of assistance - do please feel free to ask for further information once the paperwork is available
Customer: replied 1 year ago.
Thank you for your help. I am in a limbo of sorts at the moment,,being without some vital information.
I hope sight of the divorce settlement will also be a settlement to the instant problem, but if not, I shall contact you again.
Once again, many thanks.
Allen Swallow
Customer: replied 1 year ago.
Hello Clare.
I don't want/need to ask a new question, but to round off the instant one, my sister is indeed a tenant in common, but her solicitor (£600 and rising ) has told her the partner has no claim, as she was not married to my sister's ex!
So, why didn't she tell my sister that (if it is so ) at the first, ie before she started charging?
That's a rhetorical question, but in view of the help you gave, I thought you'd like to know where we are now.
Thanks, Allen
Expert:  Clare replied 1 year ago.
Well that is not entirely true - and it may be time to change solicitors!Did her ex leave a Will?
Customer: replied 1 year ago.
Kind of you to return, Clare.
That was my feeling too; it seems too easy an answer ( and indicates why I have been unhappy since my sister first told me of the situation ).
The relevant Act seems clearly to allow a claim, although the only feasible outcome would be, I think, that ownership of his part could be transferred to the partner, thus eventually passing to her children ( who are not children of the partnership however); any other order would have to involve sale of the house, with my sister out on the street!
I can't see any judge allowing that.
The sad thing is, the solicitor works for Irwin Mitchell, of whom I am sure you know, and one is told that they are among the best.
Yes, there is a will, but my information is that there is no mention of the house therein. Unfortunately, I have been unable to read the will, so although it may be a reasonable assumption that he left all his goods etc, to the partner, I cannot say for sure.
My own instinct tells me to let sleeping dogs lie, as the onus is upon the potential applicant to make an application, within 6 months, and I see no reason for my sister to open a cxan of worms (sorry, two metaphors in one sentence!) - or is this also too easy an answer?
As to changing solicitors, I have advised sis to see what happens next before going down that road, but in view of the quality of advice from your goodself, I think I know where to point her attention.
Thanks again, Allen
Customer: replied 1 year ago.
Hello again Clare.
I don't know if this is the same question, or do you require another payment?
The situation has done a flip; My sister has now been told that the will, which made no reference to the house, DOES make reference - in fact her ex has willed it specifically to his (and my sister's ) two children in equal shares!
I am at a loss to know how a will can and cannot mention something so categorical. The only guess I can make is that that is what the solicitor did, ie, guess, before seeing it.
Anyway, that is a separate issue. The one of concern now is, it seems to me, that the person in the application seat is now my sister.
Clearly, the ex's partner is out of the picture, but, unlike the restriction to 6 months for making an application to challenge the will, the new owners of half the house have no limit to when, if they so decided, to attempt to sell.
I have asked my sister, who has willed all of her estate to charity, if she has any problem with the children coming into possession of their father's share of the house.
She does not have an issue, and would therefore not challenge the will.
What does worry her, though, is, what happens if either or both children decided to realise the capital, ie, sell?
Obviously my sister would not agree to sell the house she has lived in for forty years, but my question (at last) is, what are the chances of a court ordering the sale ( if it got that far ), thereby effectively evicting my sister from her own home? I am sure there must be precedents. Does the court abide strictly by the letter of the law in such cases, or does it exercise common sense ( not to mention compassion ).
And the other question, bearing in mind the possibilty of an attempt to sell, is, should my sister herself apply to the court for a ruling that would leave her in her home for the rest of her life; if so, what is the relevant legislation.
Sorry this is quite a long missive, but I am trying to foresee your questions.
One of these may be, what is the likelihhood of the children ( both in their own homes, and in their 40's ), of proposing a sale, and the only answer I can give is 'we don't know' They are both a little unpredictable, and neither is 'well off'; in addition, due to a family squabble, the three of them are not talking!
Expert:  Clare replied 1 year ago.
As you say the only explanation is that the solicitor didn't actually know the answer.Given the specific circumstances of this case if the children do try and force a sale I believe that it will be possible for your sister to successfully argue that there is an implied agreement that she can live there for so long as she wishes and that the court will support this
Customer: replied 1 year ago.
Once again thanks for your prompt and succinct reply.
I take your point, but would just add that, as any action brought to try to sell the house could come at a near or far time, my sister may have a constant, ongoing worry, as in 'will they, won't they', which is why I wondered if it would be prudent to make the first step herself, but I don't know what legislation is apposite. I should also be most grateful if you could direct me to a precedent for the argument along the lines you suggest, ie an implied agreement.
Thanks, Allen
Expert:  Clare replied 1 year ago.
I can understand thatHow much is the property worth?
Customer: replied 1 year ago.
As I said earlier, about £120k (South Yorkshire is not Berkshire in terms of property! ).I've just spoken to my sister and she is quite prepared to wait and see, although her solicitor has told her that she only has until April to 'make a claim'. She doesn't quite understand what is meant by 'a claim', but I assume that it means a claim against the terms of the will, and sis does not intend to do that.
I must say how pleased I am with the help you have given; do you have any precedents?
Regards, Allen
Expert:  Clare replied 1 year ago.
My apologies - you did sayDo you know the extent of his other assets - any idea at all?
Customer: replied 1 year ago.
Hi; I've now seen a copy of the will, which is short.
Specifically, the ex's half share in the house is left to the two children of the marriage, as i said earlier.
The rest of his estate, which my sister's solicitor has described as 'modest', is left to his partner.
The significant portion is the house that he and his partner occupied, which he owned, and which is estimated to be worth about £120k (owned outright). The partner is clearly out of the picture so far as claiming under the Inheritance Act, but that is not the whole story.
My sister's solicitor has advied that, to secure her position, she should act (ie, make a claim )before April, in which case she will have to include the partner as a respondent.
My sister would rather avoid this if possible, and I have suggested that a more efficient (and less expensive!) solution would be to approach her two children with a view to obtaining a binding agreement not to attempt to sell their portion of the house during her lifetime - this continued occupancy is all she wants, whereas if she makes a claim through the Court she will have to challenge the whole will, and claim the other portion of the house .
I have also advised her to ask her solicitor not to pursue Court action until the negotiation path has been explored; I realise it may come to nought, as so far they have failed to respond twice to letters from the solicitor.
There is also the potential problem, what happens if my sister decided to sell ( say she had to go into care )?That of course is why we need good legal advice.Do you have a view on the foregoing?
It is a bit frustrating for me because although I was involved with European Social Security law ( Civil Service ), my knowledge of Family, Domestic etc law is minimal, but you have been of enormous help.
Sorry for the length of this comm, but I have tried to cover all points; I also feel that much of this may be of little use, and we may have no alternative other than Court action.
Regards, Allen
Expert:  Clare replied 1 year ago.
You have given very sensible advice - the starting point is discussion with the children - who after all will benefit from this as if your sister does go to court she is likely to get the house with no strings.If they do agree to this then if your sister has to go into residential care then yes the house will be sold - but only half of the proceeds will be taken towards the fees - the other half will be distributed between the children
Customer: replied 1 year ago.
Hello again. Sorry for being incommunicado, but I have had computer (and telephone) problems.
We seem to be close to the end game, as my sister's solicitor has agreed with our points and will go down the path of discussion as a first step; we have of course asked that a little pressure be applied for an early response, as the April deadline is not too far off, and sadly both children are inclined to let things slide. Hopefully their natural lassitude will be overcome when they realise thje possible consequences. I think things may soon be resolved, but in view of the exceptionally good advice you have given, I'll let you know the final outcome, hoping it will be of interest.
Once again heartfelt thanks on behalf of both of us.
Sincerely, ***** *****
Expert:  Clare replied 1 year ago.
Hi AllenI will indeed be very interested in the result - I do hope all goes wellClare

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