Question: My father was a widower for a long time but 10 years ago married a lovely lady who sadly died a couple of months ago. They were advised to hold the home they bought together as tenants in common.
According to the terms of my stepmother's will the property has to be sold now so that the beneficiaries can receive their share of her estate. My father, 75, is so upset at the thought of losing his home. This really is not what my stepmother would have wanted. She would have intended for him to be able to live in their house until he dies. What can we do?
Answer: If all the beneficiaries agree, the terms of a will can be changed by a Deed of Variation. Should any of the beneficiaries be aged under 18, an application must be made to court for consent to vary. Your father and stepmother probably intended to make mutual wills which provided for life interests in the property so that on the death of one of them, the survivor would be able to remain there until death, when the home would pass under the terms of their respective wills.
Ask the beneficiaries if they agree to the terms of the will being varied so your father can remain in the property until his death, after which they would inherit. The executors will have to agree to the variation. Remember, liability for capital gains tax and inheritance tax could be affected. If there is no agreement, there may be a right of occupation available to your father under the Trusts of Land and Appointment of Trustees Act 1996. However, this should not be relied upon, as there are risks attached.
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If you have a question for Fiona McNulty, please email email@example.com or write to Legal Solutions, Homes & Property, London Evening Standard, 2 Derry Street, W8 5EE. We regret that questions cannot be answered individually but we will try to feature them here. Fiona McNulty is a partner in the residential property, farms and estates team at Withy King LLP (withyking.co.uk).
These answers can only be a very brief commentary on the issues raised and should not be relied on as legal advice. No liability is accepted for such reliance. If you have similar issues, you should obtain advice from a solicitor.