Question: My parents own a house with no mortgage in their joint names. If my father passes away first, as matters stand the whole house will go to my mother and she will leave it to me and my brother on her death.
However, if my mother dies first, then the whole house will go to my father — and he will most probably leave it, or half of it, to his relatives in India.
My mother really wants the house, or her half at least, to go to us and knows that my father will not leave it all to us on his death.
What can be done to make him leave a share to us? One idea is for me and my brother to have our names put on the deeds, if our parents agree. Can you make any suggestions as to what we can do?
Answer: Under the law of succession in England, your parents have complete freedom to dispose of their property as they see fit. However, if the property is held under a joint tenancy as you believe, then the survivor will automatically inherit, overriding the provisions of any will.
If, instead, the joint tenancy is severed and your parents each own a 50 per cent divided share under a tenancy in common, they can each dispose of their own share by will, enabling your mother to leave her share to her children if she dies first.
Your father will still be able to leave his share of the property to other family members, if he so wishes. You may be able to challenge this if you are dependent on him, but this would necessitate an application to court. Even if you own part of the property as tenants in common with your parents, you will not be able to prevent your father from giving away his share.
Do remember that a gift of a share in the property to you may have tax implications, so you should seek tax advice.
What's your problem?
If you have a question for Fiona McNulty, please email firstname.lastname@example.org 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 is legal director in the real estate group of Foot Anstey LLP in Exeter (email@example.com)
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.