# Land Ownership question regaridng making a Will



## Patrick2008 (9 Sep 2009)

My Father owns a Farm and in 1997 when he retired and rented out the farm his solicitor advisd him to put the farm, house etc in joint names of his wife and himself. He did this and now both my parents ames are on the deeds etc. I am not sure of the type of ownership whether it is Joint Tenancy or Tenancy in common. Anyway my Father now wants to sign over the Farm to one of the sons but my mum will not allow it. He then suggested signing over 50% of the farm but again no luck. My question is if the type o ownership is Joint Tenancy is it the case that my Father has no control over what he can do with his % of the Farm? Also, does this also mean making a will is a waste of time also? I should note my Father is 82 and my mum is 70 so more than likely she will be the surviving spouse. 

My Father seems distressed over this as he would like to sign over or will the farm or at least his 50% to his son. My mum would rather wait until she is the last surviving spouse and then she make that decision. Is there any way he can relase his share either now or when he dies or are his hands tied?


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## mf1 (9 Sep 2009)

"Is there any way he can relase his share either now or when he dies or are his hands tied? "

I'm with your mother on this one! Why would they divest themselves of assets they may well need in the future?  

If your father is so hell bent on doing this ( and perhaps there is some very good reason for doing it that is not apparent) , then he could seek a Court Order to sever the tenancy ( its more than likely a Joint Tenancy)  but does he really want to do that? Its not conducive to harmonious relations.

mf


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## j26 (9 Sep 2009)

He could do a unilateral severance of the joint tenancy and transfer his share to the son, but he'd want to move with lightening speed - it's about to be banned, imminently.

However, he'd have to live with the consequences with his wife, and I'd guess there's no coming back from doing something like that. He could find half the farm gone in divorce proceedings!


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## Ann1 (9 Sep 2009)

Maybe your mum feels all of her children are entitled to equal shares of an inheritance. Also is it not law that a wife is entitled to one third of her husbands property if she survives him and visa versa. Your fathers 50% would then become 2/3rds of 100%.


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## Ann1 (9 Sep 2009)

Sorry that should read 2/3rds of his 50%.


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## Patrick2008 (10 Sep 2009)

Maybe my Father is been naive and didn't understand the implications of putting my mum on the deeds as a joint owner but he was advised to do so at the time on the advice of his solicitor. He wants to make sure my mum is looked after but at the same time he would like to see his son take over the farm or 50% of the farm. He loves my mum etc but he cannot understand how he has so little contol over the situation. Personally I understand where my mum is coming from but at the same time my Father should be entitled to do something on the matter as well.


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## mf1 (10 Sep 2009)

"but at the same time my Father should be entitled to do something on the matter as well."

He can. Read the replies. The point is he/you want a solution that suits him and does not cause any upset. Thats just not possible. There is an implicit criticism of the solicitor here - do remember solicitors advise, clients make their own decisions. He is stuck with the consequences of his own actions. 

mf


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## Patrick2008 (10 Sep 2009)

I take your point mf1 but I should stress I am not the son in question. My Father has asked for my advice but I have to be careful as I do be seen to be taking sides. At all times I have made my mum aware of any advice I am seeking just to be fair and to keep things open and transparent.


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## Bronte (10 Sep 2009)

I don't see how anything is fair if your dad is going to favour one child over the others unless that particular child has been farming it for years or looking after the parents and the other children were taken care of through education and having a career for example. 
I also don't see how he is taking care of his long term spouse by trying to give his assets away to one of their children as you mentioned in your first post that he wanted to sign away 100%.

I would also like to question the motives of the child who benefits need to have the farm signed over now.  An elderly man of 80 needs good independant advice and if I was him he should speak to the good solicitor who advised him in 1997.


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## Patrick2008 (10 Sep 2009)

Yes he is using the same Solicitor he used in 1997. In relation to looking after the other kids, they got a gift of €40k each. I was offered the same amount but I asked for a site for a house instead.


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## Kate10 (11 Sep 2009)

It's not at all unusual for people from a farming background to want to leave most of the farm to one son.  I understand the historical reasons for this but it really is morally dodgy in my view, unless that son is actually farming the land and has been doing so for some time.  I think your Dad should really think again - surely your Mum is more entitled to control the land during her lifetime than your brother?  

In any case, if your Dad does leave all of his interest in the land to one child he is leaving the estate wide open to an Section 117 application by one of the other children, unless the €40k gift is equivalent in value to the value of the farm, which I doubt.


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## Vanilla (11 Sep 2009)

Kate10 said:


> It's not at all unusual for people from a farming background to want to leave most of the farm to one son. I understand the historical reasons for this but it really is morally dodgy in my view, unless that son is actually farming the land and has been doing so for some time. I think your Dad should really think again - surely your Mum is more entitled to control the land during her lifetime than your brother?
> 
> In any case, if your Dad does leave all of his interest in the land to one child he is leaving the estate wide open to an Section 117 application by one of the other children, unless the €40k gift is equivalent in value to the value of the farm, which I doubt.


 
I completely disagree with this. The owners of the land are this man and his wife. It is up to them what they do with it. What is 'morally dodgy' about that? As for a s.117, ah come on! Not a chance.


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## Patrick2008 (11 Sep 2009)

Thanks to everyone for the advice. My parents have decided to leave things as they are for now. Whoever passes away last will decide what happens with the farm but both have decided that it will be the son who will be willed the farm when the time comes. The most important thing is that the Farm is in joint names so at least both my parents are protected.


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## Pique318 (13 Sep 2009)

Vanilla said:


> I completely disagree with this. The owners of the land are this man and his wife. It is up to them what they do with it. What is 'morally dodgy' about that?


Agree 100%


Vanilla said:


> As for a s.117, ah come on! Not a chance.


For the uninformed (ie. Me.) What's Section 117 ? Is it like Area 57 ?


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## Bronte (14 Sep 2009)

Pique318 said:


> For the uninformed (ie. Me.) What's Section 117 ?


 
In Ireland there is no requirement that you have to leave anything to your children in your will. Under Section 117 any child can make a claim on the estate if they can prove they were not looked after/treated fairly but it is very very difficult to make a claim under it. 

In the OP's case the parent's are perfectly entitled to will the entire farm to one child if they so wish and any other child would be very unlikely to get this set aside.


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## Vanilla (14 Sep 2009)

Agree with Bronte.

The kind of s.117s that succeed are where someone has, for example, a disabled child but does not make adequate provision for them in their will. Or where for eg a man has legitimate and 'illegitimate' ( yes, I KNOW that term is no longer valid but it explains the circumstances pithily) children, and the legitimate ones have a college education paid for etc while the illegitimate do not and then he dies leaving all to the legitimate child or children. This would especially succeed if the illegitimate were under age. That kind of thing.


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