right of residence in a will

J

jellybaby10

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My deceased father confired "a general right of residence" in the family home to two of his sons and his daughter in his last will and testament.
One on my brother's wants to sell the family home but I do not ,what rights do I have as one of the sons who was comfired the right of residence. Also the brother who wants to sell the house claims he is entitled to one third of its value. I am adamant the house will not be sold .What does the law say about this.
 
Rights of Residence are common in wills, particularly around farms etc

Simply put, your brother has to accept that you have a legal entitlement to live there.

Your brother might attack the will on the basis that your Dad did not make adequate provision for him, and that the house should be sold. Whether such an action would be successful would depend on the facts and circumstances of the case.

Depending on the wording of the will, it might be possible for the Executor to sell the house, but with the Rights of Residence being incorporated into the sale. I have seen cases of such sales. Obviously, the value of the property would be greatly reduced by the Rights of Residence. The purchaser would have to wait until the last of you and your siblings passed away before he could get vacant possession.

The Executor could attempt to "buy out" the Rights of Residence, but he would have to buy out all 3 Rights.


Jim Stafford
 
1. Are you or the other two currently living there?
2. Why are you "adamant" the house is not sold?
3. What do you think your father's wishes were, what was to happen when you and your siblings died?
 
You have the right to reside there. His '1/3 ' share only arises when you all either die or cease to live there and the house can then be sold for you each to get your share.

As Jim says, if the house were to be sold, the new owner would not be able to take possession of it until you all are dead. So a potential purchaser would be a very rare thing to find, plus the price would be massively reduced to take into account you might be there for another 10 or 70 years.

I presume your brother is not in the house but like to get his hands on his share right now, but is frustrated because he realises the clause in the will prevents him.

And it's not a case of being able to outvote you either. You have the right to reside there and that's it. Tell your brother to calm down, and failing that tell him go waste money on a solicitor. I presume the executors solicitor has explained the will to you all.
 
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Nobody lives there at the moment.I will eventually live there exercising my right to do so at a.later date. I currently pay all the bills ie Gas, electricity , TV on the house including insurence which my father stipulated be kept on the house in his will and be maintained in good order, which it is. I occasionally stay at the house my brother and sister do not stay at the house even though they have residency rights as they prefer to live in their own houses . I dont own a house .

I dont want the house sold as I plan on living there untill I die.

My fathers wishes were that after all his children have passed the house would be left to all the grandchildren on an equil basis.

Thanks dereko1 ,969 for your reply.
 
Does occasional use constitute residency ?

Why not buy out the brother and sister ?
 
Thanks Bronte for your advice.

He thinks he is being hard done by because he wont benefit financially if the house is not sold but his children willin the end. It will be left to all the grandchildren after all my fathers sons and daughters pass on. I dont see how he is being treated any less favourably then me and my sister when we all have residence rights.He just want to cash in and I dont .
 
I dont has the financial means to but them out.

The will doesn't stipulate when I have to reside there it just states that I have right of residence.
But I will eventually move in permanently some day.
I know that the wishes of my father was that it would remain in the family because its stated in the will that after all his children are passed then it is left to the grandchildren.
My argument is that my brother is granted the same residence rights as I am and if he chooses to live in his own house then that is his decision. .He shouldn't be able to force a sale but when there is no mention of selling the house in the will and seeing that he is treated no less favourably then me ànd/or my sister in the will he cant force a sale when it woukd deprive me of what was bequeathed to me in the will.
 
A right of residence may work where the grantees are married to each other or single but it would appear not to work where the grantees are married to other people and have children of their own.

In your case your siblings have their own families and family homes, are you proposing that they and their families should move into the house as they have the right of residence.

At a practical level how would this work, I'd imagine that this would not work at all so it's unfair to say that it's his choice not to live there.

He has/is presumably paid/paying for his own family home, you are proposing to move into the willed property so clearly you are benefiting more than him.

As pointed out by Jim a sale subject to a right of residence is not going to realise the same value as the sale of a freehold so perhaps there is room for an agreement where you would buy out their rights for an agreed amount so that you can enjoy sole use of the property.

The alternative would be that you all move into the house and see how long that lasts.
 
Gotta agree with Joe_90 here, I can see nothing but trouble for all of you in the future.
That been said, how big is the property are we talking the Lyons estate or a 3 bed semi d or could it be a holiday home ??
 
Jellybaby why did your father leave the house with a right of residence?

Would it be fair to say you work in Dublin and the family home is elsewhere and that you intend to return to the home when you are retired? How many years from now is that?

Also you say your father stipulated that insurance was to be paid on it, what else was in the will about the house?

Could you please type out the actual wording in the will.
 
jellybaby10 said:
its stated in the will that after all his children are passed then it is left to the grandchildren.
Click to expand...

This reads like the house was left to the grandchildren with a right of residence to you and your siblings.

If this is the case then the house is not yours (or your siblings') to sell.
 
My sister is unmarried and has no children and lives in one ot the corporation flats in the inner city so her rent there is minimal as she is getting the old age pension.
My brother has been divorced for many years, his two children are married and in their mid 30s and have their own houses , He lives alone in an inner city corporation flat and pays minimal rent also based on his pension I think .

I dont really want to print the full will on here (it dosent mention selling or renting out the house anywhere in the will) at this stage as I am only making enquiries and no lègal documents have passed between us just words.
I will add that I alone have been paying the insurance on the house since my father passed 6 years ago and any bills for maintènance that have arisen.
Also within a couple of months of my father passing my brother and sister handed me their keys to the house , they never took up residency.
No legal documents were exchanged regarding that so I would assume they still have a right of residency even though they handed me their keys and did not pay any costs re insurance , everyday bills etc.
I really just want to know if he can force a sale of the house and if so can I still stay there because of the right of resinency I have.
I still dont see how he is being treated less favourable then me or my sister .
I am not in a position to "buy them out" and I dont see it that they actually have anything to sell just as I dont see that I have a right to sell as all we have is residency. In any case I want to reside in the house not sell it .
I do want to keep the residency that was left to me in the will and intend living in the house permanently in the future.
I misread the will and thought it ment that the house was to be left to the grandchildren after his sons and daughter passed on but that is not the case after futher examining the will.It says that if my fathers sons or daughter died before him then the son or daughters children would get their father or mothre's share of any estate other then the house and its contents. As we 3 are all still alive this is immaterial.
My father wrote the will this way so as his two sons and daughter would always have a roof over their heads no matter how lifes events might swing for each of us.
It would be comforting to know for me personally that I will always have a place to stay.
I forgot to state that I am unmarried and have no children.

Once again a big thank you Bronte and all who replied with their views on this , I am much obliged.
The way I see it is that the ball is in my brothers court and I suppose the next thing would be legal papers heading my way to appear in court if he goes ahead with what he keeps saying about selling the house.
 
No need to print the will, just type word for word the bit about residence, and leave out names or write Tom Dick and Sally.

Where do you live now.

Was probate taken out, who is the executor?
 
Its a small two bedroomed inner city terraced house.
Im of the opnion now 6 years after our fathers death that he realises that as I am the youngest of the 3 of us by 20 odd years the oods are that I will outlive my sister and brother but I dont think that way nobody knows whats around the corner so to speak.
To me we were treated equally in the will and he is just trying to cash in for whatever reason .

I think I have a pretty good argument in that I was left right of residency in the will just as they were , they have their own places to live and I dont own any residence or live in a corporation flat like they do paying minimal rent . I also have no issue with either or both of them taking up residency as it is their right. WHo knows how that would work out .But I assume that after they handed me back their keys to the house 6 years ago they are not interested in taking up residency.
 
What does "was probate taking out"?

I live in a one bedroom rented apartment in a different city and want to stay there for the time being.But I do eventually want to move in permanently into the house in question. I have stayed at the house on several occasions for various amounts of time ie days,weeks and months over the past 6 years.

Heres the part of the will you asked be printed.

I confir general right of residence at said address plus the contents thereof to my tree children Tim , Tom & Mary . Those taking up the right to residense
should be responsible for insuring and the resonable maintenance of the house for as such a time as they exercise their right of residense.

I alone have paid the insurance on the house every since my fathers death 6 years ago plus any maintenence bills on it to this day.
My sister and brother handed me their keys to the house within a couple of months of my fathers death. I did not ask them to do this they just gave me the keys and said they were going to stay living in the current abode's.
There is nothing else in the will regarding the house.
I have no issue with them if they now want to move into the house but they have stated that they do not.
My brother just wants the house sold and the proceeds divided 3 ways equally.
My sister has stated she dose not want the house sold .
I certainly dont want the house sold.
 
I dont know what "was probate taken out " means.
My fathers brother was the executor , he is still alive.

I will be retired in 5 years from now in 2022.
 
Probate means proving the will, or more generally transferring the legal ownership of the property, here the house, from the dead person to the heir(s).

It is not clear from your posts who actually owns the house now. Is it still your father, or the 3 of you equally, or some other owner.

In any case you have a right of residence in the house and your brother cannot force a sale.

Your brother could go to court and try to force a sale, but from the information you have given it seems very unlikely that he would succeed.
 
The three of us equally own the house. The deeds to the house are in a locked drawer at the house.

That's comforting to know that in the event he does go to the courts with this he would be unlikely to succeed despite what he says a solicitor told him.

Thank you.
 
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