Probate: Husband Transfers Assets to Son to Thwart Wife's Legal Right Share

MattHolohan · 04-11-2018 01:17PM #1

I'm sitting for the QLTT this week and this question has come up on prior exams but was not covered in my review materials.

What happens when a husband transfers assets to his son prior to his death, with the intent of preventing the assets from passing to his wife (either through divorce decree, intestate distribution, or legal right share)? Is it any different if a husband transfers assets to himself and his son as joint tenants with survivorship?

What are the wife's remedies here when the husband dies?

Victor · 04-11-2018 01:31PM

IANAL, but surely the (former?) wife only has rights to what she has rights to. There is no automatic right to an inheritance.

Presumably she has rights to:
* what she owns, partially or otherwise;
* what has been granted to her by any separation / divorce agreement / order;
* what she has statutory rights to.

MattHolohan · 04-11-2018 01:35PM

Under the Succession Act the wife has a legal right to 1/3 of the estate if there are children (1/2 if there are not) if the husband dies testate, and 1/2 (or all of it if no issue) if the husband dies intestate. At least that's what they taught me in the probate review session. The fact that the examiners are asking about this suggests that there's some mechanism by which the wife can unwind the transfers to the son to restore the estate before she takes her share.

Victor · 04-11-2018 02:07PM

So, if the (still married) husband owns the family home in his name and transfers it to the son before death, the widow would have a claim on the house. Note also the FHPA. I don't know the mechanism use to do the unwinding.

Similarly, if the wife is entitled under a divorce settlement to (say) a pension, but the husband disposes of all assets to the son, then some unwinding must be allowed.

4ensic15 · 04-11-2018 07:31PM

Victor wrote: »

So, if the (still married) husband owns the family home in his name and transfers it to the son before death,

The transfer to the son would be void under the family Home protection Act 1976. The wife woulod sue the son for the return of the house to the estate.

Victor wrote: »

Similarly, if the wife is entitled under a divorce settlement to (say) a pension, but the husband disposes of all assets to the son, then some unwinding must be allowed.

Transfers of assets to defeat a creditor can be set aside. The bankruptcy officers in the High Court have to do it all the time.

MattHolohan · 04-11-2018 07:42PM

Thanks! Happen to know what section of the Family Home Protection Act that falls under?

4ensic15 · 04-11-2018 08:19PM

MattHolohan wrote: »

Thanks! Happen to know what section of the Family Home Protection Act that falls under?

I've done enough of your homework. Time to look at the statute book online.

MattHolohan · 04-11-2018 08:38PM

Fair enough. Thanks again. I think this has to do with the Family Home Protection Act's requirement that the non-owning spouse must consent to a conveyance of the family home.

Probate: Husband Transfers Assets to Son to Thwart Wife's Legal Right Share

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