Family home inheritance question

camphor

infosys wrote: »

If you read I never said the court would refuse a partition suit, I only gave an outlandish example where the court may. It was an off topic issue. The person asked can a person be forced to to sell I said yes, the person asked what would the court consider I gave a example of things that might weigh on its mind.

Has any court in a partition suit ever taken those factors into account? You cannot cite one case! What is your authority for such a proposition?
Yes I agree that schemes can be withdrawn, hence why I said they OP and the other siblings and FIL should take legal and Financial advice.[/QUOTE]

You are trying to have it both ways. You are giving advice and then when your "advice" is undermined saying they should get proper advice.

Pro Hoc Vice

camphor wrote: »

Has any court in a partition suit ever taken those factors into account? You cannot cite one case! What is your authority for such a proposition?
Yes I agree that schemes can be withdrawn, hence why I said they OP and the other siblings and FIL should take legal and Financial advice.

You are trying to have it both ways. You are giving advice and then when your "advice" is undermined saying they should get proper advice.[/QUOTE]

I'm not giving advice its against the rules, what I actually said,

"Back on the OP, In relation to the father not waiting to gift the house now because if future medical care or sheltered housing, the sheltered housing would be provided by the OP medical care in ireland there is a scheme for such care, if the father has no assets then no issue, if father retains home then only a certain % can be lost due to long term care needs. But of course proper legal and financial advice should be got."

So I do not see how my advice was undermined as the only advice I gave the OP was to get proper legal and financial advice. You on the other hand seem to be spoiling for a fight, which I can not understand as that will in no way help the OP. I accept I threw out a silly example, I never claimed it was the basis of a decision, if I had I would have quoted it, I never claimed it was law, I was merely saying what a court may consider, in fact I never even said the court would do one thing or another, and guess why, because I don't know what they would do.

Now back to the OP who had a simple question, could they be forced out of house after FIL dies, answer yes its a possibility, so I said what about selling your own house buy FIL house (daddy still has money so can pay for care, or daddy can gift the cash now). OP said no go, so I said what about life interest, (I also said everyone has to agree). No legal advice there just options for the OP to explore.

jackthetrader

Courtesy Flush wrote: »

In the scenario where Bill and Bob inherit the house. The court will enforce the terms of the will ie: divide the house up equally. As a house cannot be divided in two, I assume that means liquidating it ?

Thats quite true. A house cannot really be divided into two. I guess the most logical thing is to turn it into cash and divide that up. It might be up to the executor of the will to oversee that

camphor

infosys wrote: »

You are trying to have it both ways. You are giving advice and then when your "advice" is undermined saying they should get proper advice.

I'm not giving advice its against the rules, what I actually said,

" I accept I threw out a silly example, I never claimed it was the basis of a decision, if I had I would have quoted it, I never claimed it was law, I was merely saying what a court may consider, in fact I never even said the court would do one thing or another, and guess why, because I don't know what they would do.

.[/QUOTE]

Says it all really.

Pro Hoc Vice

camphor wrote: »

I'm not giving advice its against the rules, what I actually said,

" I accept I threw out a silly example, I never claimed it was the basis of a decision, if I had I would have quoted it, I never claimed it was law, I was merely saying what a court may consider, in fact I never even said the court would do one thing or another, and guess why, because I don't know what they would do.


Says it all really.

Yes and! It was a throw away comment. Your issue is?

JustAThought

[quote

My elderly father in law is currently living alone in the family home in South County Dublin and is becoming quite incapacitated. The house is old and large and is not ideally suited to his needs but he is insistent on staying there. My wife would like to move back home to care for her father so we are proposing that we sell our own house, which is bcomming too small anyway for our 3 kids and move back and care for her father, which he seems happy enough about. My wife has two brothers who also live in Dublin and do their share for their father, staying with him as much as possible but cannot offer the full time care he is starting to require. The house is willed equally among the three siblings
Obviously my father in law would be getting full time care he needs and we would be benefitting from having a much bigger house for the kids.

My question is, will we be compelled to leave the home if my father in law passes so the will can be executed? This could be a year from now or 15 years who can say but there is no other arangement between the siblings in this regard[/quote]

I can foresee a whole family saga around this. Have you considered that it is not your family home & that the two brothers may /will continue to come over & spend time in their family home with their father. How will you feel about this when you are homeless and living there & have fallen out with them but come in to see them watching TV & staying the night?

You will he looking into a whole raft of issues and problems - what if your FIL medical needs require specialist treatment, or care. If he has to sell his home do you want him to be unable or unwilling to do so as it will make you homeless ? ? What if he falls out with you or wants you or your children to leave? What happens then? Where will you go & what will your family do if you have sold your small house then?

I can't imagine both siblings and anyone else who might benefit from the potential will being happy with this proposed scenario.

What if your wife becomes ill and is unable to care for her father. Will she eventually be expected to do the heavy lifting that caring for any elderly or incapacitated person entails? Will you stay home from work to help?

I would be asking and assuming that you would retain your own home, and renting it out , and also providing a rental income to the FIL by renting at whatever decided rate .

That would provide some security & legal standing to you and your family , and allowing the father in law and brothers in law the benefit of a solid framework which they could have some security and confidence in. If they agree to ut- and they may not.

As your fil would be resident in the house it should come under the rent a room scheme as it would still be his principle primary residence . This would allow him to collect an income from you ( I think it's 12,000 or 14,000 pa) and this could be used to offset bills /medical costs /other care requirements as his situation evolves. Your wife and ultimately children and you of course would benefit as he would have a fixed regular income to retain the additional services of a part time care provisionorganisation such as bluebird or home stay . You may see the advantages of a big "free" house but the reality may well be that as your FIL's medical & care needs evolve your wife may simply not want or be able to give him the care he needs. She will additionally be minding 3 kids & will want holidays/ weekends away with you and to be able to leave to go shopping/meet friends/ go for a walk/do school runs /be herself etc. The reality that most home carers in Ireland find is that they become overwhelmed with the requirements of their loved one as the situation evolves & cannot wave or walk away as there is no one else to mind the elderly person. The home caters association have been protesting all last year & marched on the Dail last year and every year at budget time to emphasise these issues. They also have a great website listing some of basic difficulties caters face ; your wife should look at this before you make any decision to sell & /or move in.

This could probably offset the concerns of the other siblings and tHEIR wife's who will also no doubt have an eye to their wants & inheritances also.


Tbh I'm not sure how well thought out this is -the focus seems from your thread to be on the asset value of his house - it must be huge if it will allow the owner, you, your wife, and 3 other people to live their comfortably. I can't imagine the rest of the family just allowing you to sell up & move in for the rest of your lives without there being major issues & concerns.

I would also be asking basics like if there will be an additional 5 people living in the house who will pay the additional gas/oil & heat & water bills. Not your FIL? Not to mention all the other logistical costs & issues .

I would also be extremely concerned about the long time cost to your family, home life & most particularly your wife if you close & lock all doors behind you - it sounds fraught with difficult scenarios & legal pitfalls & is a big gamble for the peace & stability of your family.

camphor

infosys wrote: »

Yes and! It was a throw away comment. Your issue is?

It demonstrates that you don't know what you are talking about and are inventing fantasy scenarios.

Pro Hoc Vice

camphor wrote: »

It demonstrates that you don't know what you are talking about and are inventing fantasy scenarios.

Are not a lot of scenarios fantasy. I never said it was anything other than a made up throw away creation. You on the other hand have an issue with telling the difference between fact and fiction, as well as advice from opinion. Bit of an issue that.

It is people like you that turn what is a bit of informative fun in to a chore, for at least 50% of this thread we (yes I include me) have dragged this thread totally off topic. I have accepted it was a silly example to use, so why are we (you) still harping on about it.

camphor

infosys wrote: »

Are not a lot of scenarios fantasy. I never said it was anything other than a made up throw away creation. You on the other hand have an issue with telling the difference between fact and fiction, as well as advice from opinion. Bit of an issue that.

It is people like you that turn what is a bit of informative fun in to a chore, for at least 50% of this thread we (yes I include me) have dragged this thread totally off topic. I have accepted it was a silly example to use, so why are we (you) still harping on about it.

Whatever about your example, saying the courts will take certain factors into account is making a proposition of law. Propositions of law need to be backed up with authority, either case law or statute. You made a proposition of law with no basis whatsoever for saying it.
That is just drivel and I don't think it is fun. It is certainly not informative.

Pro Hoc Vice

camphor wrote: »

Whatever about your example, saying the courts will take certain factors into account is making a proposition of law. Propositions of law need to be backed up with authority, either case law or statute. You made a proposition of law with no basis whatsoever for saying it.
That is just drivel and I don't think it is fun. It is certainly not informative.

"The way the courts would decide any other division of property issue. The courts do this everyday in divorce situations, so why not between siblings. The courts will look at the relevant strengths of each party at an extreme take the following example.

Mr. A has two children Bill and Bob, bob is a little slow, has lived at home all his life and his only income is social welfare. His brother bill has been to university and has a very good job, paying him very well, he lives in a nice house with his family and is very comfortable. The house is worth €40k after sales costs, so €20k each. It is proven that it would be difficult to buy a suitable house for bob for €20k.

But each case must stand on its own facts."

I never said what the court would or would not do, I simply say that courts do Forse sales every day. No where did I say they would or would not order a sale. I left the person I was responding to decide for them selves.

jackthetrader

JustAThought wrote: »

I can foresee a whole family saga around this. Have you considered that it is not your family home & that the two brothers may /will continue to come over & spend time in their family home with their father. How will you feel about this when you are homeless and living there & have fallen out with them but come in to see them watching TV & staying the night?

You will he looking into a whole raft of issues and problems - what if your FIL medical needs require specialist treatment, or care. If he has to sell his home do you want him to be unable or unwilling to do so as it will make you homeless ? ? What if he falls out with you or wants you or your children to leave? What happens then? Where will you go & what will your family do if you have sold your small house then?

I can't imagine both siblings and anyone else who might benefit from the potential will being happy with this proposed scenario.

I would have the same concerns. The fact that OP family will never actually have a legal right to own the house but will effectively be renters or dare I say Squatters would worry me. The other family members would have the same legal right to stay there when they wanted, they may actually want to just to show its their house too. The other siblings perhaps have kids of their own they would like to leave an inheritance too. Why would they walk away from that. I understand that caring for an eldery parent is very tough but it doesnt give you any more rights legally afaik

jackthetrader

Of course the flip side is that OP family do not move in with FIL to look after him. FIL soon requires full time care, goes into a nursing home and the house is required to pay for the care. Then no sibling inherits anything

JustAThought

jackthetrader wrote: »

Of course the flip side is that OP family do not move in with FIL to look after him. FIL soon requires full time care, goes into a nursing home and the house is required to pay for the care. Then no sibling inherits anything

Not quite - FIL is admitted to hospital via ambulance call-out ( key point) ; is then admitted as an emergency so is under " free" care if not VHI is not declared. Family refuse to sign him out without appropriate home care & supports provided . Standard practice nowadays. Home care & supports provided.

camphor

infosys wrote: »

But each case must stand on its own facts."

I never said what the court would or would not do, I simply say that courts do Forse sales every day. No where did I say they would or would not order a sale. I left the person I was responding to decide for them selves.

What you said was gibberish. The courts force sales according to defined criteria. You don't know what the criteria are and decided to invent some. That has no place in a legal discussion.
When in a hole, stop digging!

Pro Hoc Vice

camphor wrote: »

What you said was gibberish. The courts force sales according to defined criteria. You don't know what the criteria are and decided to invent some. That has no place in a legal discussion.
When in a hole, stop digging!

The first thing to be said is that the relief sought by the plaintiff is a discretionary relief.

The Court's power to order a sale is contained in Section 3 of the Partition Act 1868, which states as follows:

"In a suit for partition, where, if this Act had not been passed, a decree of partition might have been made, then if it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of some of those parties, or of any other circumstances, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the Court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions."

It is clear from the wording of the section that the Court has a wide discretion in whether it orders a sale of the premises. All relevant circumstances can be taken into account. In addition, when the section states "if it appears to the Court that……… a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them" , it is not just the applicant who must be considered but all those interested in the property. If authority is needed for this, it is found inDrinkwater v. Ratcliffe (1875) LR 20 Eq 533, and Fleming v. Crouch (1884) WN 111.

In the latter section the Court also has a wide discretion, except that a sale is mandated by the words "the Court shall, unless it sees good reason to the contrary, direct a sale of the property" (my emphasis). The onus of establishing a good reason to the contrary rests on the party opposing the application. In this regard see Pemberton v. Barnes (1871) LR 6 Ch App 685.

From M (B) v. M (A) [2003] IEHC 170

Am I correct in saying partition is a discretionary relief, it seems yes, am I correct that the court can look at dissent and disability, it seems yes, yes the court can order sale not withstanding dissent or disability, but as a discretionary relief the court can refuse partition.

To be clear again I never said the court would grant or not grant relief, I used my example only to show a forced sale application in circumstances that could in my opinion morally wrong. A tale, but for some reason you can't get that. I don't know why.

camphor

infosys wrote: »

The first thing to be said is that the relief sought by the plaintiff is a discretionary relief.

The Court's power to order a sale is contained in Section 3 of the Partition Act 1868, which states as follows:

"In a suit for partition, where, if this Act had not been passed, a decree of partition might have been made, then if it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of some of those parties, or of any other circumstances, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the Court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions."

It is clear from the wording of the section that the Court has a wide discretion in whether it orders a sale of the premises. All relevant circumstances can be taken into account. In addition, when the section states "if it appears to the Court that……… a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them" , it is not just the applicant who must be considered but all those interested in the property. If authority is needed for this, it is found inDrinkwater v. Ratcliffe (1875) LR 20 Eq 533, and Fleming v. Crouch (1884) WN 111.

In the latter section the Court also has a wide discretion, except that a sale is mandated by the words "the Court shall, unless it sees good reason to the contrary, direct a sale of the property" (my emphasis). The onus of establishing a good reason to the contrary rests on the party opposing the application. In this regard see Pemberton v. Barnes (1871) LR 6 Ch App 685.

From M (B) v. M (A) [2003] IEHC 170

Am I correct in saying partition is a discretionary relief, it seems yes, am I correct that the court can look at dissent and disability, it seems yes, yes the court can order sale not withstanding dissent or disability, but as a discretionary relief the court can refuse partition.

To be clear again I never said the court would grant or not grant relief, I used my example only to show a forced sale application in circumstances that could in my opinion morally wrong. A tale, but for some reason you can't get that. I don't know why.

First off, the Partition Act 1868 has been repealed. If you are going to do research, you should do it before you post on a topic and also you should be up to date.
You mentioned factors a court might take into account such as the relative strength of the parties. Has a court ever taken into account such a factor?
You have yet to cite a case. Your attempts at self justification are pitiful.

Moderator: this member was infracted for this post, in combination with other posts in this thread.

Pro Hoc Vice

camphor wrote: »

First off, the Partition Act 1868 has been repealed. If you are going to do research, you should do it before you post on a topic and also you should be up to date.
You mentioned factors a court might take into account such as the relative strength of the parties. Has a court ever taken into account such a factor?
You have yet to cite a case. Your attempts at self justification are pitiful.

Has the 2009 (I assume it's that act) act changed the discretionary nature of the relief. Again I will say which you can't seem to grasp I never said the court would do A or B. You it seems can not understand what a throw away comment is.

BTW I did not quote any Act, I quoted a case which quoted a Act. Unless the repeal and new section changes the law it remains good law.

Can you post case law to say that my wild (I accept its wild) case would get or not get relief.

Just for clarity as you don't seem to get it, I have not am not nor will not say relief would be granted.

jackthetrader

JustAThought wrote: »

Not quite - FIL is admitted to hospital via ambulance call-out ( key point) ; is then admitted as an emergency so is under " free" care if not VHI is not declared. Family refuse to sign him out without appropriate home care & supports provided . Standard practice nowadays. Home care & supports provided.

Ok I didnt know that. I thought the State would go to lengths to try and recoup the money cost of home or institutional full time care. Such as if the person had any assets or money to their name.

Courtesy Flush

JustAThought wrote: »

I can foresee a whole family saga around this. Have you considered that it is not your family home & that the two brothers may /will continue to come over & spend time in their family home with their father. How will you feel about this when you are homeless and living there & have fallen out with them but come in to see them watching TV & staying the night?

You will he looking into a whole raft of issues and problems - what if your FIL medical needs require specialist treatment, or care. If he has to sell his home do you want him to be unable or unwilling to do so as it will make you homeless ? ? What if he falls out with you or wants you or your children to leave? What happens then? Where will you go & what will your family do if you have sold your small house then?

I can't imagine both siblings and anyone else who might benefit from the potential will being happy with this proposed scenario.

What if your wife becomes ill and is unable to care for her father. Will she eventually be expected to do the heavy lifting that caring for any elderly or incapacitated person entails? Will you stay home from work to help?

I would be asking and assuming that you would retain your own home, and renting it out , and also providing a rental income to the FIL by renting at whatever decided rate .

That would provide some security & legal standing to you and your family , and allowing the father in law and brothers in law the benefit of a solid framework which they could have some security and confidence in. If they agree to ut- and they may not.

As your fil would be resident in the house it should come under the rent a room scheme as it would still be his principle primary residence . This would allow him to collect an income from you ( I think it's 12,000 or 14,000 pa) and this could be used to offset bills /medical costs /other care requirements as his situation evolves. Your wife and ultimately children and you of course would benefit as he would have a fixed regular income to retain the additional services of a part time care provisionorganisation such as bluebird or home stay . You may see the advantages of a big "free" house but the reality may well be that as your FIL's medical & care needs evolve your wife may simply not want or be able to give him the care he needs. She will additionally be minding 3 kids & will want holidays/ weekends away with you and to be able to leave to go shopping/meet friends/ go for a walk/do school runs /be herself etc. The reality that most home carers in Ireland find is that they become overwhelmed with the requirements of their loved one as the situation evolves & cannot wave or walk away as there is no one else to mind the elderly person. The home caters association have been protesting all last year & marched on the Dail last year and every year at budget time to emphasise these issues. They also have a great website listing some of basic difficulties caters face ; your wife should look at this before you make any decision to sell & /or move in.

This could probably offset the concerns of the other siblings and tHEIR wife's who will also no doubt have an eye to their wants & inheritances also.


Tbh I'm not sure how well thought out this is -the focus seems from your thread to be on the asset value of his house - it must be huge if it will allow the owner, you, your wife, and 3 other people to live their comfortably. I can't imagine the rest of the family just allowing you to sell up & move in for the rest of your lives without there being major issues & concerns.

I would also be asking basics like if there will be an additional 5 people living in the house who will pay the additional gas/oil & heat & water bills. Not your FIL? Not to mention all the other logistical costs & issues .

I would also be extremely concerned about the long time cost to your family, home life & most particularly your wife if you close & lock all doors behind you - it sounds fraught with difficult scenarios & legal pitfalls & is a big gamble for the peace & stability of your family.

I can assure you this isnt some kind of play for a free house. My wife does want to care for her father and is quite worried about him. We do on the other hand have to consider the implications for our own family and at the moment, based on weighing up all the options, we cannot move in with her father.

Pro Hoc Vice

Courtesy Flush wrote: »

I can assure you this isnt some kind of play for a free house. My wife does want to care for her father and is quite worried about him. We do on the other hand have to consider the implications for our own family and at the moment, based on weighing up all the options, we cannot move in with her father.

And there is the problem, as soon as a bit if "land" is involved, motives are questioned in this country. All your wife wants to do is care for her father and protect her own family. Which is why it's best to sort it out now. I know I'll be accused of saying all sorts of things. But the best bet is to get the family together and agree a long term solution.

jackthetrader

Courtesy Flush wrote: »

I can assure you this isnt some kind of play for a free house. My wife does want to care for her father and is quite worried about him. We do on the other hand have to consider the implications for our own family and at the moment, based on weighing up all the options, we cannot move in with her father.

Having read all the potential problems and pitfalls in this thread you are probably rightly concerned about the future if you move into FIL house. Hopefully something can be worked out that satisfies all parties, if indeed that is possible.

Santa Cruz

Synyster Shadow wrote: »

Would the sale of your own house be worth 2 thirds of your father in laws house? If it was then ye move to that house signing your to the father in law and only her siblings would get money from your old home. She will have gotten her share by gettin the family home. But I'd make sure it was sorted before selling and moving. Specially with kids anything can happen

I think that this is a good solution once the figures added up. It would have to be drawn up in a legal document of course and there may be some taxation issues..