Interpretation of clause in will

[Booter]

Would appreciate a steer from anyone who has experience of this type of clause in a will and what the likely legal interpretation might be:

Widowed parent leaves a will dividing estate equally between five adult offspring. However a clause exists stating that one of these offspring is to receive a two/sixths share, in the event that they do not "have their own home".

This particular offspring being aware of said clause, deliberately arranges to keep their own home in husband/partner/wifes name so as to be in the technical position of not owning their own home, despite living there as a family unit for many years. (Particular offspring bears bad blood to whole world and would very likely pursue all the way for additional share.)
How would (and I suppose should) this clause properly be interpreted by the executor / solicitor?

Thanks

 

[mf1]

"How would (and I suppose should) this clause properly be interpreted by the executor / solicitor?"

How would a Court interpret it, more likely.

My advice in situations like this is

(a) What are the financial implications?
(b) Is it worth it, from either perspective, to dispute the actuality/reality of the situation?
(c) What would a Court say?
(d) Who wants it to end in Court and is there any chance of resolving it amicably?

If the answer to that last bit is no-one and no chance, then perhaps it is not worth fighting over?

Aren't families just the pits?

mf

 

[Booter]

"How would (and I suppose should) this clause properly be interpreted by the executor / solicitor?"

How would a Court interpret it, more likely.

My advice in situations like this is

(a) What are the financial implications?
(b) Is it worth it, from either perspective, to dispute the actuality/reality of the situation?
(c) What would a Court say?
(d) Who wants it to end in Court and is there any chance of resolving it amicably?

If the answer to that last bit is no-one and no chance, then perhaps it is not worth fighting over?

Aren't families just the pits?

mf

MF1,

The pits indeed. I'd hazard a guess in answer to your points:

a) There is a house involved, so could be significant I suppose (although not huge)

b) The party who might gain an extra share would, in my opinion, see it as worth pursuing; the others may take a pragmatic view that they/we have simply been outmaneuvered by a schemer, and decide to suck it up!

c) That's really the crux of it. Would you have any insight into that?

d) Amicably. (Chuckle) No. Most would rather it be divvied fair and square and have nothing to do with court, however I would say that might be where we are headed.
Thanks

 

[mf1]

"c) That's really the crux of it. Would you have any insight into that?"

The Court can only deal with what is in front of them.

So - lets say, majority of beneficiaries and executor take the view that extra share was only supposed to go to minority beneficiary if they genuinely did not own, or have a beneficial interest, in a property. Minority beneficiary will present as either (a) will meant actual legal ownership and I don't or (b) full blown poor me, not a sou to my name and do not even have beneficial ownership of anything.

A lot of Law is about Hard Neck and bullying. I will often advise a client to walk away from a bully and spare themselves the aggravation. I cannot spare them the aggravation - it does not bother me but I am not the person being aggravated. The money is seldom worth it for the aggravation involved. For bullies, though, the aggravation is all.

mf

mf

 

[Pat Bateman]

If the other siblings are all married, can they not do the same (i.e. transfer their property to their spouses) and thus block their sibling's claim?

 

[csirl]

There are a lot of legal precedents and laws around concerning beneficial ownership involving spouses.

If the individual is married and the house is classified as the family home, then both family law and taxation law says that they are beneficial owners regardless of who's name is on the deeds. If they are on the mortgage documents, then the banks regard them as beneficial owners. I have a gut feeling that the criteria for determining whether or not someone is a first time buyer would probably apply, but this is just an educated guess - executor should take the advise of his solicitor.

What will determine the course of action is the view taken by the executor. If the executor takes the view that this sibling is a home owner, then it will be up to the sibling to challenge this in court and the costs/risks may not be worth it for him.

 

[csirl]

A lot of Law is about Hard Neck and bullying. I will often advise a client to walk away from a bully and spare themselves the aggravation.

True.

Over the years, I've come across a lot of bullies who've tried to quote various laws/loopholes etc. - generally trying to frighten others with legal language and threats of lawsuits etc. They are using the threat of legal action rather than the strength of their case to force people to submit to their wishes. I tend to ignore these threats as, in most cases, these people are afraid to go anywhere near a courtroom. The executor should have confidence in the legal advice received from his/her own solicitor and proceed accordingly.