Leaving The Family Home To One Child

Kintarō Hattori

Hey Folks,

I always thought you could pretty much do what you wanted with your will and your property but I've been told that's not the case. Can a family home not be left to one child and not the others? I've been told by a friend of mine who's wife works in legal circles that because it's a family home it has to be left to all of the children?

Can anyone enlighten me?

seamus

There's law that deals with people who die intestate (without a will) and those who don't.

I don't have any links off hand, but something in my head says that a will can be challenged by certain parties, as there are minimum entitlements that children and spouses have, which override anything said in the will. Parties can of course waive those rights and allow the will to go unchallenged.

Kintarō Hattori

A will has been worked out that declares one child as being the beneficiary of the house. Thanks for that info Seamus, if you have any links that you can post at a later date that would be fantastic.

Font22

children can make a section 117 application if they dont think they have been provided for properly by their parents under a will cant they? would that not apply in a situation like this?

johnnyskeleton

A testator must make reasonable provision for his children. s.117 Succession Act, 1965. I think this usually applies to dependent children, although it would be broader than the usual definition of dependent (i.e. it might include children with long term incapacity or a child who gives up a career to take care of the testator).

I haven't heard of a rule that a family home must be divided between all the children.

Kintarō Hattori

I should add that the 'children' range in age from 30 to 40. There's 5 of them and the house is being left to the eldest.

Font22

doesnt make a difference. the section doesnt enforce an age restriction.

dats_right

In reality people leave the family home to one or other of the siblings all of the time without any problems. That said, it would be folly to rule out for absolute certain a possible Section 117 application(i.e. parental failure in moral duty to make proper provision for a child). Section 117 is rather complex for the non-lawyer to understand/interpret and therefore it would be advisable to contact a solcitor, who after hearing all of the relevant facts will be able to advise you fully on the matter.

Kintarō Hattori

To be honest, none of the kids including myself are bothered about the house. I was just curious. Long long story but essentially at my eldest brother's 40th there at the weekend the folks made a big announcement that he would be getting it and no-one else.
It was essentially a two fingered gesture to the rest of us. I was just curious if they could. If they couldn't do that it would be nice to turn around and tell them that, though none of us would actually pursue the matter. I've never asked them for anything in my adult life and I'm not about to start now.

Jo King

The question asked by the court at a S.117 application is what would a just and prudent parent do. If a child has been provided with a reasonable education and or set up in life to take care of themselves, the parents job is done. The court has to look at all the circumstances, including the resources of the family, what monies have been given to each of the children, what education has been provided for them and any special needs of one or more children.

Victor

eo980 wrote:

To be honest, none of the kids including myself are bothered about the house. I was just curious. Long long story but essentially at my eldest brother's 40th there at the weekend the folks made a big announcement that he would be getting it and no-one else.
It was essentially a two fingered gesture to the rest of us. I was just curious if they could. If they couldn't do that it would be nice to turn around and tell them that, though none of us would actually pursue the matter. I've never asked them for anything in my adult life and I'm not about to start now.

Whoa dude!! The clause is there, in part to stop family feuds running between generations - and you want to use it to say 'screw you'?

If this is the only thing beyond bed and board that and of you get from your parents, I think it could be easily challenged. If as suggested that one child gets the business, one the house and one is put through 7 years of college to become a doctor, then it would be much harder to challenge.

Of course, if law was chosen instead of medicine, that might change.

Kintarō Hattori

I'm not entirely sure about this clause thing Victor. Reading the replies here, some say that the folks can give it to one child and some say that they can't. I'm not remotely legally minded so I don't fully understand.
Even if we were entitled to a share in the house none of us would actually take it, but it would be nice to turn around and tell them that they got it wrong, that they can't do that. Yes, yes it would. It's a long long story Victor.
The house is really the only valuable commodity that the family has, there is nothing else of any great worth. And we all received the same level of education except one brother who went nuts and studied for 3 degree's. The brains of the family!

Nevyn

It is not a family asset it is your parents the people who's names are on the deed's asset and they can dispose of it as they wish.

grumpytrousers

it's a question of perspective.

On one hand, the person making the will can leave the house to whomsoever the hell he/she likes, (let's say one of five children). Period.

However, that person to whom the house is left might not get to enjoy it, and it really depends on how the other 'children' take to it, and what their circumstances in life are like presently and how they were looked after earlier on in life.

In other words, if mom & pop decide to bequeath the house to child C, the same one who had them pay his flippin' tuitition fees to Harvard, a sports car on his 21st birthday and a flat in a nice part of town as soon as he got his first job...meantime giving kids A, B, D & E diddly squat, then they would have the right to challenge C getting the house solely under Section 117.

On the other hand, if Mom & Pop paid for an education for children A, B, D & E and so on, but Child C just wasn't so academically minded and kinda did less, while the others went on to be neurosurgeons, giving the house to Child C as he'd never be able to afford one otherwise, the Section 117 application might not be such a wise move.

There's a million and one positions in-between those two theoreticals and to be honest, there's sadly no 'right' answer that you can smack your parents between the eyes with!

if there are five children in a family there is certainly no automatic entitlement to the five of them sharing equally in anything

Kintarō Hattori

Thaedydal wrote:

It is not a family asset it is your parents the people who's names are on the deed's asset and they can dispose of it as they wish.

That's what I had thought and that's fine with me, I had just been told otherwise by someone.

Tom Young

117s are an interesting instrument indeed. I think the succession act on one of the better deals CJH implemented, unlike the cash for passports deal. The judiciary are treating applications under 117 with a lot of care it must be said, and the case law on this area makes very interesting reading.

Rhonda9000

Hypothetical s117's aside, lets hope your brother can arrange an equity release in time for the chamber pots and esteemed Irish nursing homes

ircoha

Rhonda9000 wrote:

Hypothetical s117's aside, lets hope your brother can arrange an equity release in time for the chamber pots and esteemed Irish nursing homes

If he does not perhaps he will be rooting out the Beachboys hit
Help me, Rhonda or maybe just Help by the Beatles

[For our younger viewers: http://en.wikipedia.org/wiki/Help_Me,_Rhonda]

I found this thread very instructive and just want to clarify a point:
If they gift the house to the bro before they check out of planet earth, then as the property will not be in the will : s117 will not be an option.
Thanks

scab-e

What happens when one parent dies first? Does that parent have to make provision for his children or can he leave his share of the house to his spouse?

UrbanFox

scab-e wrote:

What happens when one parent dies first? Does that parent have to make provision for his children or can he leave his share of the house to his spouse?

Not a legal opinion.

The 1965 Act should cover this.

AFAIK if one spouse dies intestate the estate goes 2/3 to surviving spouse and 1/3 to be split amongst the issue.

However, despite the above or any provisions of a will I think that the surviving spouse is entitled to appropriate the home and the household goods and chattels in absolute priority to anyone else even if that means that there is no residue left for anyone else to inherit.

Given the complexities of modern day relationships and their transient nature this whole area is probably going to be become a nightmare in which a lawyer's advice is imperative to avoid running in to serious legal tangles in which nobody will win !

johnnyskeleton

scab-e wrote:

What happens when one parent dies first? Does that parent have to make provision for his children or can he leave his share of the house to his spouse?

Provision for children does not mean "give them money". It might be allow them to stay there until they reach majority. A surviving parent or guardian will usually hold infant children's part of the estate on trust for them.

Finally, a lot of spouses own their family home as joint tenants. This means that when one dies, the other becomes absolute owner of the property by operation of law, irrespective of what it says in any will.

templetonpeck

johnnyskeleton wrote:

Finally, a lot of spouses own their family home as joint tenants. This means that when one dies, the other becomes absolute owner of the property by operation of law, irrespective of what it says in any will.

Was just about to post the exact same thing.