Entitled to use of holiday home in will - what happens if house sold?

ymck

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Hi - I’ve had a look online but I can’t find a definitive answer.

My father-in-law (who has no living spouse) has stated that he intends to divide his assets equally amongst his children in his will, except for his holiday home in Spain, which he plans to leave to his eldest daughter. The condition is that she allows her siblings to use it.

My question is: if she decides to sell the property, would she be required to compensate her siblings financially, since they would lose access to the home?

Thanks a million
 
Thanks for your reply. I understand your point, but it doesn’t quite answer the question. I’m simply trying to determine whether she would be required to compensate her siblings. Having this information might help discourage my father-in-law from including this provision in his will as at present, he doesn’t see it as an issue.
 
Presumably because the Spanish property will require a separate Spanish will?

 
It is always advisable to have a will in the foreign country to deal specifically with the foreign property.
Often, foreign countries such as France, Spain, Italy, ... have laws defining how assets are divided which can be very different to Irish Law

For example, in France, you cannot disinherit your children without their consent
 
It’s completely depends on the wording of the will . The will may give the other siblings definite legal rights of access to the house or it might be vague and not give them any rights . And I agree that the law in the country that the house is in may be relevant. If the eldest sibling owns it outright , who will stop them selling it abroad ?

There is no way to get a definite answer on a forum like this .
 
He could write a vague phrase into his will such as, I give Mary my house abroad and hope that she and my family continue to make good use of it. Something vaguely aspiration would have no monetary value.
Or he might be specific, and say I want Tom, John, Bridget, and frank to have sole use of the house for a two week period each, every year between July and August. That may have some monetary value if Mary sells up after 5 years, but would probably be hard to determine, all it is is probably equivalent to 2 weeks air bnb rental yearly, and should John get more because he went every year but Frank get nothing because he never availed of it. And would the siblings expect Mary to make them a cash offer if she sells, or are they willing to sue?

If I were Mary I would be very inclined to sell once I got ownership and then just wait for the solicitor letters.
 
He could write a vague phrase into his will such as, I give Mary my house abroad and hope that she and my family continue to make good use of it. Something vaguely aspiration would have no monetary value
I'm pretty sure that this is incorrect. It's an asset with a monetary value regardless of such wording.
 
Will also be problems agreeing how long each can use it and who gets choice of periods..And then children of the siblings will want a few nights too. Nightmare scenario that won't work and will divide family.

Also the condition the property is left in after each family, responsibility for any damage found, utilities to be paid etc
 
My question is: if she decides to sell the property, would she be required to compensate her siblings financially, since they would lose access to the home?
In answer to your question, there is no automatic right to compensation if she sells.

The other siblings could pursue legal action to achieve what they believe is their entitlement but there’s no guarantee they would be successful.

If your father in law is insistent on including the family use clause in his will (and as others have said, this is fraught with future uncertainty), he should at least include a provision outlining what should happen in the event of a sale. She can’t keep it forever, after all.

While he’s at it, what about the possibility that she might just change the locks and refuse you all your two weeks. What happens then?
 
I think in Ireland such stipulation would possibly be added as a burden to the folio which would affect a future sale. May be different in Spain
 
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It depends on two things:

(a) Exactly what the will says.

(b) Spanish law.

As to (a), it's possible to include language in your will that is not, and is not intended to be, legally binding. You express a hope or a desire that your heirs, or a particular heir, will do X or Y, or will bear Z in mind — "I leave Blackacre to my son X, confident that he will continue the present informal arrangement under which the Donkey Sanctuary uses the upper field when they need it". If the will is in terms like these, then family members won't have a legally enforceable right to use the holiday home; they'll be dependent on the owner to respect the testator's non-binding wishes. But if the will leaves the holiday home to the daughter "subject to the right of each of my other children to have exclusive use of the home for themselves and their families for up to two weeks a year for no payment at a time or times to be agreed with my daughter", that looks a lot like binding language which creates legally enforceable rights that could (in Ireland) be registered as a burden on the land.

If the language of the will is not clear one way or the other, there's potential for a row over whether the rights are legally enforceable, and so are registrable, or not — a row that, ultimately, can only be definitive resolved by court proceedings. So it's important for the testator to be clear in his own mind about what he intends, to have the will drawn up by a professional, and to ensure that the professional understands exactly what he wants and drafts the will accordingly.

If the rights are enforceable and a burden is registered, and the owner later sells the property with the burden still registered, the new owner would still have to make it available for 2 weeks a year to each of the owner's siblings. Which means, of course, that the house is unsaleable unless the burden is discharged, which in turn means heated discussion between the owner and the siblings about exactly what percentage of the sale price each of the siblings will want in order to get them to agree to the discharge of the burden. (Which is precisely the kind of consideration that might make the testator think twice about granting rights of this kind in the first place.)

All that assumes a house in Ireland. Which brings us to (b); things may be different in Spain. I assume, but I don't know, that there is a mechanism in Spain whereby rights in land that fall short of full ownership can be registered, and are enforceable. Assuming that, the questions that arise would be: Is a right to the occasional use of a holiday home the kind of right that is enforceable, and is registrable, in the Spanish system? If so, is the wording of the will sufficient as a matter of Spanish law to create an enforceable, registrable right over this property? If so, whose job is it to register it — the executor who adminsters the will, or the beneficiaries whose right it is? What needs to be done to register it? If it has been registered, how is it enforced? And, if it has been registered, in what circumstances can it be removed and how can that be done? All questions, obviously, on which competent Spanish advice will be needed. Almost certainly the advice will include "make a separate Spanish will dealing with your Spanish property". And this advice will hold even if the testator doesn't want to create enforceable, registrable right — he needs to make a will that, as a matter of Spanish law and practice, clearly does not create those rights.
 
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