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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.
May I clarify why you are selling the property please? I am assuming you and your husband also still live in the property?
The property was bought for my father-in law to live in and my husband and I only stayed there at weekends to visit him. He became unstable on his feet last year and we had to move him in with us as he was falling so often and having the paramedics out at least once a week so he came to live with my husband and I permanently.
Thanks. So from what you say you have your own separate property to the one in question which is now being sold?
He has now gone into care and as the house was 200 miles away - bought so he could be near his sister - we decided it was unlikely that he was ever going to return to the house and so we put it on the market.
Understood - thank you.
Yes I have a house in Hampshire and his house was in Norfolk.
When the house was bought was anything agreed about who would own the equity in the property? I appreciate the legal title is in your and your husbands names. If anything was agreed was it put in writing?
No nothing was agreed. Subsequently it appears my husband has stated to his sister that the £30k equity that remains in the property really belongs to her. However I think he was inferring that this was when his father passed on.
Also there is and was nothing in writing.
Thanks. Finally your FIL's will. You mention this refers to money in bank accounts is to be split between his children. What does his will say happens to his residuary estate - ie everything that is left after specific gifts are made?
The Will states that his residuary estate is left in equal shares to both my husband and his sister.Actually I should also mention that my husband and I are divorcing and that there was a conversation with my husbands sister over the equity in the property. She agreed to make no claim on any money in the property so it could go
to my husband to help fund him with a flat purchase and today she has called and said she has changed her mind and would now like the £30k equity.
The Will also states Definition of my estate:
The money investments and property from time to time representing all such property.
All my property of every kind wherever situate
All my property of every kind wherever situate over which I have a general power of appointment
Thanks. The starting point will be that you and your husband jointly own the property but this is rebutable by your husbands sister on the basis that your father in law did not gift you the money to be put into the property. Accordingly it should be relatively straightforward for her to establish that the property does not belong to you both but rather belongs to your father in law.
So to summarise, she would have a strong case and we would not be advisable to suggest she challenges this legally even though we bought this house some 8 years ago?
And my other question is would she have to wait until his death to challenge this?
From there unless there is any evidence to suggest that the money you used to pay off your debts was a loan from your father in law you can claim this was a gift.
your sister nor in deed anyone has any right to anything from your FIL until he passes away. His will is not effective until after death
When your FIL passes away your husband will have a claim on half of the 30K equity based on what you say unless his sister can prove that the money you used to pay off debts was a loan which would presumably be difficult
If your husband wished to claim all of the 30K equity rather than half as provided for by his will he would need to show that the money received from his father was a gift. The presumption in English law is money given to a son by a father is not a gift and therefore it would be for your husband to show that it was if he wanted to assert a claim to the full 30K equity share.
If he cannot show it was a gift from his father then his sister would likely be able to lay a claim to half of the 30K equity (i.e. £15K) under the terms of her fathers will. However this would entail a court application if your husband disputed this because you are both the legal owners and therefore have control of the sale monies. Accoridngly she may not wish to risk the costs of litigation when the outcome is not certain therefore your husband may decide in the first instance at least to press a claim to the full amount and refuse to pay any of it into your fahters account.
Is there anything above I can clarify for you?
Does the above answer all your questions or is there anything I can clarify or help you with any further?
That ia very comprehensive thank you. One last thing is whether you can advise if you have to have proof of money being 'gifted' in writing and whether we could obtain a signed document now showing that this money was indeed gifted at the time.
a pleasure. ideally, your husband would have some form of written evidence that the money handed over by his father was a gift however, if he does not have such evidence or cannot obtain it at this point, he could seek to rely on an old common law doctrine known as the presumption of advancement. This is a common law provision which runs that a gift by a father to his children can be presumed to be a gift in the absence of contrary evidence.
the above presumption of advancement is a limited presumption which any applies to gifts made by husbands and fathers principally in the presumption is a limited one however in the absence of any other evidence to the contrary, it may serve as a useful tool for your husband to rely upon if he wishes to claim all the monies in the property on the basis the money was provided to him by his father
Great that is veryhelpful. I will leave you in peace now. Thanks again.