Inheritance property dispute - unclear will

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Sean O

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My late aunt bequeathed her residence (a house) in her will as follows:
“The property I give and bequeath to [sister’s name] to hold and maintain as a family home with free access for holidays or longer stays for my nephew [my name] if he wishes to stay here, and for his family.”
My sister intends to sell the property and keep the proceeds and I would be deprived of my right to make use of the property. Can I prevent the property from being sold and if it went to court what would the likely ruling be? I'm unclear what legal rights I have. I would interpret the will as allowing me the right to use the property indefinitely for family visits such as holidays or longer stays.
If the property is sold, would I be unreasonable in expecting at least a small % share of the proceeds?
 
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It is not at all clear.

House given to niece, with a very unclear right attaching. Whatever about nephew using for holidays, how is his family defined, does it include his children too?

Did a solicitor draw up the Will?

Certainly, both parties will have to take legal advice and the final decision will lie with Courts. This has all the hallmarks of great expense, unless both of you sit down and try to come up with some financial package to satisfy you both.
 
Thanks for your response. It was a self-made will, without advice from a solicitor.

At the time that the will was drawn up, I was single, though I am now married.

My sister is unwilling to consider sharing any of the proceeds of the property sale with me, and is intent on selling the house.
 
Hi Seán

What does your solicitor say?

I am not a lawyer, but I assume that your sister can sell the house but that does not change your right to stay in it. So the purchaser would have to accommodate you. In other words, they would not buy it.

Brendan
 
Brendan Burgess said:
What does your solicitor say?
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I haven't yet taken legal advice. I'm hoping to avoid a lot of legal expenses and resolve matters out of court. My uncle's solicitor, who is acting on behalf of my sister, is alleging that I don't have any rights in relation to the property.
 
Her solicitor is not neutral. You should consider registering your interest on the property register.
 
Thirsty said:
Who is the executor? Has probate been granted?
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The executors are friends of my late aunt. They've taken a very hands-off approach. My aunt died 9 years ago, and probate was granted within a year of her death.
 
Perhaps you should register a lis pendens with the property registration authority if you sue. The author of the will ( testatrix) intended to create a right of residence. Perhaps you should enter a Caveat in the Probate Office ( costing about €50) to stop the personal representative taking out probate as a first step. Then seek out the advice of a good solicitor and if in doubt obtain an opinion of a good Barrister's specialising in wills on the validity of this clause. It seems to me this is a right of residence and if valid your sister will have to financially compensate you for its loss before she could sell the property. The right of residence should be registered as a burden on the title deed / land certificate.
 
Pmc365 said:
Perhaps you should register a lis pendens with the property registration authority if you sue. The author of the will ( testatrix) intended to create a right of residence. Perhaps you should enter a Caveat in the Probate Office ( costing about €50) to stop the personal representative taking out probate as a first step. Then seek out the advice of a good solicitor and if in doubt obtain an opinion of a good Barrister's specialising in wills on the validity of this clause. It seems to me this is a right of residence and if valid your sister will have to financially compensate you for its loss before she could sell the property. The right of residence should be registered as a burden on the title deed / land certificate.
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This strikes me as very helpful advice, thank you!
 
Sean O said:
My aunt died 9 years ago, and probate was granted within a year of her death.
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Let's be practical about this rather than legal.

Your aunt died 9 years ago and your sister moved into the house and has lived there for 9 years?

You have a right to visit. Have you availed of that right? Are you likely to avail of that right?

It's really stupid of your aunt to put such a right in a will as it only leads to conflict and legal problems.

If your right has no value to you, then you should waive the right and allow your sister to sell it.

If you have stayed in the house on many occasions since your aunt's death, then you are losing a valuable right and should be compensated.

I presume it was not your aunt's intention that you and your sister should fall out over her will? So by giving up a right you don't use, you would be pleasing your aunt.

If you are going to waive your right, Christmas is a good time to do it.

Brendan
 
Brendan Burgess said:
Your aunt died 9 years ago and your sister moved into the house and has lived there for 9 years?
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In actual fact my sister lives in a different city and uses the house not more than a couple of days a month.
I need to point out that I posted in the 'ask about law' forum since I am interested in advice on my legal rights. If we want to discuss the morality of it, I'm not sure how morally defensible it is for my sibling to profit to the tune of €600,000, when it was my late aunt's wish that the property never be sold and that it be maintained as a family home.
 
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Not sure if this is of any help or indeed any legal standing but Mrs Cervelo owned a property which her mother had a legal right to residency
When she passed away the house was sold and a value of 10% of the sale price was given to the legal right
And the added to her estate for the propose of calculating inheritance tax
 
Sean O said:
In actual fact my sister lives in a different city and uses the house not more than a couple of days a month.
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That was my key point.

If this is a property that you use, then of course you should retain that right or be compensated for giving it up.



Brendan
 
This is the result of stupidity by the aunt in the naive belief she was saving money by doing her own will. In any case you should ensure that the terms of the will are recorded. First step. Check out the Property registration and you may find that the terms were included. You can do this yourself for minimal cost once you have the Land Folio number. If it is then any solicitor worth their salt would not recommend buying the property without you signing away your right. ( Who would buy a property that gives a stranger right of residence?) Under the terms of the will you have a right of use and it should be registered. If not correspond with the Probate Office. Your sister may not like this but there is a commercial value to the right. For her to sell the property the right must be cancelled. I advise briefing a solicitor, establish if the right is registered and if so have your solicitor correspond with your sister. I would assess how much cancelling the right might be worth financially. For example what value would free holiday accommodation for life be worth? Realistically though you would be better quoting how much you want to give up your claim and let negotiations begin!
From a litigation base I would say that you are in a strong position as long as your right is registered. However there will be legal costs if you end up in the Circuit Court. And certainly if the right is not registered you will need to get the Probate Office to explain and get the property registration updated promptly.

p.s. I find the Probate Office one of the more efficient sections of the civil/public services. I would be confident that any burdens on a property would be noted and accounted for in dealings between them and the Land Registry
 
Vanessa said:
From a litigation base I would say that you are in a strong position as long as your right is registered. However there will be legal costs if you end up in the Circuit Court. And certainly if the right is not registered you will need to get the Probate Office to explain and get the property registration updated promptly.

p.s. I find the Probate Office one of the more efficient sections of the civil/public services. I would be confident that any burdens on a property would be noted and accounted for in dealings between them and the Land Registry
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Some very helpful points made, thank you!
 
Vanessa said:
if the right is not registered you will need to get the Probate Office to explain and get the property registration updated promptly.
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Indeed I have just checked the Register of Land Ownership online and found that the right of access has not been registered. I'll get in touch with the Probate Office to see what steps I need to take to have the right registered.
 
When we purchased our house it was from a group of three siblings I believe and someone (maybe another sibling) had a right to live in the house for his lifetime. Our solicitor would not proceed with the sale until this right was compensated by the siblings in monetary value. They said no, and our solicitor got senior counsel opinion on it, much to the sellers annoyance. He agreed and they had to give a certain amount of money to this person with a right to live in the house. We were clueless but our solicitor did her due diligence and we just followed her advice. Held up the house sale for 4 months. Our solicitor said the right went with the house so that we would be responsible for it if we purchased the house without quenching the right, and that we would end up paying a value to this persons estate eventually.

So your right, and that of your family to stay in the house does have a monetary value and you and your family will have to be compensated to quench this right. The value of this is probably open to negotiation between you, your family and your sister. It sounds as if your sister is not willing to negotiate on this.

You have had great advice here from previous posters. When you sister puts the house up for sale get your solicitor to write to the sellers solicitor stating your right. I would try and enter mediation on the value to put on you and your families right. First they probably need to define what is your family, spouse,children, grand children, in-laws? Hopefully you can come to some agreement as to the value, but there must be some common ground.
 
Clamball said:
It sounds as if your sister is not willing to negotiate on this.
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Unfortunately my sister is avoiding acknowledging that I have any rights in relation to the property, and is not open to mediation.

Does anyone know what steps I need to take to register my right to access the property with the Probate Office? Or do I need to contact the Land Registry?

I have checked the Land Registry Register of Ownership document, and it states that my sister is the full owner of the property.
 
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