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Bequeathing a house in a Will which has non benificeries living in it.

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I intend to get professional legal advice on this as I'm making my Will, but I thought I'd test the water here first.

 

 

Please don't ask questions about the reasons for my wishes, it is a complex situation and I don't want to discuss it.

 

Circumstances:

 

I own my home outright, I am the sole owner. I bought the house outright with no mortagage and only my name is on the deeds.

 

My girlfriend moved in with me when I took possession and a few months later her son moved in as well with my agreement.

 

They are both named on the Council Tax and have bank accounts and mobile phone bills at the address, her son is an adult and out of full time education.

 

All other bills are in my name only and my partner makes no contribution to the bills nor has she contributed anything to the maintenance or improvement of the property over the 6 years we have been here.

 

If my partner does a food shop alone she uses my credit card account which is in my sole name but she has a card as 'Mrs Homer' so it's not actually in her own name.

 

As we are not married and according to information I have been given, my partner has no legal claim to the property at all upon my death.

 

I have checked and that does seem to be correct, despite some people saying common law rules apply, which I understand to be false.

 

I intend to write a Will which will bequeath the property, savings and goods to my sister and her children, with advice for the house to be sold.

 

My question is: Can my Executor give notice to my girlfriend and her son to move out so the property can be sold and do they have to comply?

 

My intention is to Will an amount of money from the sale of the property to my girlfriend's son to help him get on the housing ladder and the rest of it to go to my Sister's family.

 

Nothing will be bequeathed to my girlfriend, so she will have to make her own living arrangements (I am sure that will be with her son).

 

It doesn't sound too complex but I wondered if anyone had experience of this?

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Hi.

 

 

I think you're definitely in lawyer territory with this.

 

 

 

I'm a bit confused about on the one hand you worry about your GF being given notice and then on the other say she'll make her own arrangements, could you clarify please?

 

 

I know that houses that aren't 'vacant possession' are harder to sell and not worth as much, so you'll need advice on that part I suspect.

 

 

HB


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Are you going to use a solicitor to draft the Will? It's advisable in your circumstances. They can advise you whether either your gf or her son would be able to make any claim on the Estate. Personally for something so important I would never rely on what's written online or information given in CAG or any other forum.

 

The other thing to consider is whether you will allow gf to live there for a certain amount of time after your death before she has to move out. I was Executor on a Will that provided for this, similar situation to the one you describe, although the unmarried couple in my case were in their 80s. The solicitors put a clause in saying that on the death of the person who owned the house the unmarried partner was allowed to live there rent free (in this case for the rest of his life unless he married or moved out, but similar clauses are usually time-limited, live there for 12 months for example). Then the house "shall be sold forthwith" by the Executors and the proceeds used in the way specified in the Will.

 

There were various other provisions in the Will about the right to reside in the house being restricted to the named person (he couldn't let someone else move in with him) that he had to keep it in good repair and insure it, paying all the outgoings, and some other stuff. [He pre-deceased the owner of the house so in this case the clause never came into effect.]

 

 

It's a clause any solicitor should be able to draft for you, it's quite a common situation. Once the time limit was up the Executors could require the person to leave and enforce that through the courts. The solicitor drafting it can advise on the procedure.

 

 

Even if there were no clause like that the Executors couldn't evict gf immediately as they couldn't do anything until they got Probate, a couple of month's usually. So you might as well make it an express clause and time limit in the Will.

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Hi.

 

 

I think you're definitely in lawyer territory with this.

 

 

 

I'm a bit confused about on the one hand you worry about your GF being given notice and then on the other say she'll make her own arrangements, could you clarify please?

 

 

I know that houses that aren't 'vacant possession' are harder to sell and not worth as much, so you'll need advice on that part I suspect.

 

 

HB

 

 

What I meant is that once the Will is read and it is clear who is bequeathed what, she will need to be given notice to leave by the Executor and make her own arrangements for somewhere to live.

 

 

I presume her son will say come and stay with him but she has the option of stayng with her other children, point being is she is no longer entitled to live in my property and it must be sold and the proceeeds split as specified in the Will.

 

 

Does that help?

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Are you going to use a solicitor to draft the Will? It's advisable in your circumstances. They can advise you whether either your gf or her son would be able to make any claim on the Estate. Personally for something so important I would never rely on what's written online or information given in CAG or any other forum.

 

The other thing to consider is whether you will allow gf to live there for a certain amount of time after your death before she has to move out. I was Executor on a Will that provided for this, similar situation to the one you describe, although the unmarried couple in my case were in their 80s. The solicitors put a clause in saying that on the death of the person who owned the house the unmarried partner was allowed to live there rent free (in this case for the rest of his life unless he married or moved out, but similar clauses are usually time-limited, live there for 12 months for example). Then the house "shall be sold forthwith" by the Executors and the proceeds used in the way specified in the Will.

 

There were various other provisions in the Will about the right to reside in the house being restricted to the named person (he couldn't let someone else move in with him) that he had to keep it in good repair and insure it, paying all the outgoings, and some other stuff. [He pre-deceased the owner of the house so in this case the clause never came into effect.]

 

 

It's a clause any solicitor should be able to draft for you, it's quite a common situation. Once the time limit was up the Executors could require the person to leave and enforce that through the courts. The solicitor drafting it can advise on the procedure.

 

 

Even if there were no clause like that the Executors couldn't evict gf immediately as they couldn't do anything until they got Probate, a couple of month's usually. So you might as well make it an express clause and time limit in the Will.

 

 

Thanks very much, that's great information and exactly what I was looking for. I am definitely going to be consulting a solicitor to do this for me and I was just dipping my toe in here to see what the consensus was.

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What I meant is that once the Will is read and it is clear who is bequeathed what, she will need to be given notice to leave by the Executor and make her own arrangements for somewhere to live.

 

Slight digression, but "the reading of the Will" - the family solicitor calling the family into the room and a hushed silence as the solicitor reads out your last wishes to gasps of surprise - is something film makers and authors love for its dramatic potential but it doesn't happen in real life! There is not, and never has been, a requirement to 'read the Will' in that way. After your death your Executors retrieve the Will from wherever you lodged it - often the Solicitor who drew it up for you - then let your beneficiaries know that something has been bequeathed to them. I notified the beneficiaries by email!.

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If the girlfriend has been financially dependent on you, which it sounds very much like she has, there would be grounds for making a claim under the Inheritance Act. That isn't to say a claim would be successful, as each case is judged on its merits and to some extent, the depth of the claimant's pocket. These things are hideously expensive (£40K and up), and can drag on for years.

 

Proper legal advice from a trained solicitor is a must. Not one of these low cost will writing outfits or a DIY pack from WH Smiths. Spend £300 on good quality advice now, and save £100K in legal costs after you are gone.


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I'm sorry to say that your partner, and her son, may well have a valid claim over your estate.

 

They will be eligible to make a claim under the Inheritance Act. There are 5 set classes of Claimants, the ones that are relevant to you are: Cohabitee (someone living as husband or wife with the deceased for at least 2 years immediately prior to death) and Anyone partly or wholly maintained by the deceased immediately before their death.

 

As you pay for both their lifestyles then it is likely that they can argue you maintained them, and so have a right to your estate.

 

That doesn't mean you can't make your will how you want to, but you are running the risk they will make a claim under the Inheritance Act that they should have been given more in your will than what you had provided for. Contested probate claims are quite expensive and it is likely only a judge will be able to say if they are definitely covered (although it looks like it) and the allowances you have made are sufficient or not.

 

I would always advise discussing this with your partner, because if they understand the reasons for your decisions, people may be more likely to respect your wishes, but it's entirely what is best for your situation.

 

I would ABSOLUTELY advise you go to a solicitor to have expert advise and to draw up the will, to minimize the likelihood of your estate being contested

Edited by Romancey23

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Slight digression, but "the reading of the Will" - the family solicitor calling the family into the room and a hushed silence as the solicitor reads out your last wishes to gasps of surprise - is something film makers and authors love for its dramatic potential but it doesn't happen in real life! There is not, and never has been, a requirement to 'read the Will' in that way. After your death your Executors retrieve the Will from wherever you lodged it - often the Solicitor who drew it up for you - then let your beneficiaries know that something has been bequeathed to them. I notified the beneficiaries by email!.

 

 

Thanks, I remember that from my parent's will, we just collected it and read it out to ourselves and dealt with it.

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If the girlfriend has been financially dependent on you, which it sounds very much like she has, there would be grounds for making a claim under the Inheritance Act. That isn't to say a claim would be successful, as each case is judged on its merits and to some extent, the depth of the claimant's pocket. These things are hideously expensive (£40K and up), and can drag on for years.

 

Proper legal advice from a trained solicitor is a must. Not one of these low cost will writing outfits or a DIY pack from WH Smiths. Spend £300 on good quality advice now, and save £100K in legal costs after you are gone.

 

 

She is not financially dependent on me, she has a job and keeps her salary to herself.

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I'm sorry to say that your partner, and her son, may well have a valid claim over your estate.

 

They will be eligible to make a claim under the Inheritance Act. There are 5 set classes of Claimants, the ones that are relevant to you are: Cohabitee (someone living as husband or wife with the deceased for at least 2 years immediately prior to death) and Anyone partly or wholly maintained by the deceased immediately before their death.

 

As you pay for both their lifestyles then it is likely that they can argue you maintained them, and so have a right to your estate.

 

That doesn't mean you can't make your will how you want to, but you are running the risk they will make a claim under the Inheritance Act that they should have been given more in your will than what you had provided for. Contested probate claims are quite expensive and it is likely only a judge will be able to say if they are definitely covered (although it looks like it) and the allowances you have made are sufficient or not.

 

I would always advise discussing this with your partner, because if they understand the reasons for your decisions, people may be more likely to respect your wishes, but it's entirely what is best for your situation.

 

I would ABSOLUTELY advise you go to a solicitor to have expert advise and to draw up the will, to minimize the likelihood of your estate being contested

 

 

You have presumed I fund their lifestyles and that's not correct as I don't. They both work and keep their earnings for themselves.

 

 

Also the statement 'living together as husband and wife' seems to be common law that I have seen discredited everywhere, you're either Married, Divorced (without a financial settlement) or in a Civil Partnership, anything else is single and not liable for anyone else.

 

 

I think it's obvious why I do not want to discuss it with my partner and really have no need to as it is not her concern as we have not gained anything jointly financially since cohabitating.

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I fully agree with the posters who say discuss it with those concerned, those who are the main beneficiaries and those who might be expecting something but aren't getting it, when you make your Will. There's less chance of someone contesting the Will if there are no surprises in it when you die and and they understand why you did what they did. There's nothing a big surprise and their expectations being overturned to send people rushing to a solicitor to contest a Will. If there's going to be a row about it better it happens now than when you aren't here to explain.

 

Your point about rights of co-habitees is a good example of the risks of looking up law on the internet. In most areas of legal rights you are correct, co-habitees have few or no rights. But the Inheritance Act 1975 is an exception

 

https://www.buckles-law.co.uk/site/services_for_you/srvind_wills/inheritance_act_claims/ [there are dozens of similar websites] "Under intestacy provisions unmarried partners do not benefit at all and therefore usually have a good claim under this Act"

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You have presumed I fund their lifestyles and that's not correct as I don't. They both work and keep their earnings for themselves.

 

 

Also the statement 'living together as husband and wife' seems to be common law that I have seen discredited everywhere, you're either Married, Divorced (without a financial settlement) or in a Civil Partnership, anything else is single and not liable for anyone else.

 

 

I think it's obvious why I do not want to discuss it with my partner and really have no need to as it is not her concern as we have not gained anything jointly financially since cohabitating.

 

I am actually legally trained (although i am in no way giving legal advice, only suggestions in what actions you may want to consider and contested probate is not the area i work in now, although i do have some knowledge) and I'm afraid i have to disagree and absolutely agree with Ethel Street, unmarried partners can and do make claims under the IA as long as you have lived together for at last 2 years. It is up to a judge in the end to decide if their claim is valid.

 

I also didn't intend to upset with suggesting you discuss this with the people involved, however i am a firm believer that someone should be aware of all the options and they can make a decision about what is best for their decision, and discussing their wishes is one of the first things i was taught about these things.

 

I can also confirm that providing a place to live rent and bill free can be considered a financial option and can be considered in an IA claim.

Again, i recommend you speak to a specialist about this

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