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Terms Of Will

givyjoe

Theoretical question here on the terms of a will, specifically re: a clause attached to a right of residency to one child (of 4), barring that child from moving their partner in after the remaining living parent passes away. What criteria would you use to consider if someone had been moved in/'living' in the deceased's property?

I've possibly made it overly complicated/convoluted above.. in other words, a father's will leaves the family home to all 4 children, with right to continue living there granted to one sibling, with the condition they never move their partner in.

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Del2005

You want to leave someone something that they can't use! I can't even see how it'll be enforced as once the probate is done who can enforce the clause?

Just split it 4 ways and let them sell it or 1 buy the other 3 out.

givyjoe

https://www.boards.ie/discussion/comment/118299663#Comment_118299663

It's already been done, and not by me. Seems to be a standard enough clause. And they can use it, they can and do still live there, just can't move anyone in. The questions isn't about splitting etc, that's not an issue, the question is specifically around not breaching the term of the will, i.e. they can't move anyone in and what, from a legal perspective, counts as living somewhere.

3DataModem

"what from a legal perspective counts as living somewhere"

The best people at threading this line are those who have been granted accommodation and / or benefits on the basis they are living alone, but are not really living alone. They'll tell you the main thing is to ensure no post arrives addressed to the "visitor", and that no government agency has the visitors postal address as that residence, and that the visitor has another postal address. Lots of people stay over with boyfriends / girlfriends etc 4/5/6 even 7 nights a week.

givyjoe

https://www.boards.ie/discussion/comment/118300547#Comment_118300547

Thanks for that. That's about what I would have guessed myself. All of the above would apply and the 'staying over' seems to be limited to 2 (3 max) nights a week.

Effects

Jesus. What's the point in being left a share of a house, if it's no benefit to you until your sibling dies.

givyjoe

https://www.boards.ie/discussion/comment/118300842#Comment_118300842

The point is to not immediately make one sibling homeless, because others want their share, while also protecting the other siblings interest.

Effects

Why would the sibling ever give up living in the house in that case?

I've a friend in a similar situation. Her sister still lives at home with her dad, as she's always been too lazy to get her own house, and preferred spending her money on herself. There's three siblings.

If there was a clause such as that mentioned, she'd just never move out of the house. She's never had to pay rent or mortgage in her life, so why start now.

Victor

I cant imagine a court upholding such a clause on public policy grounds.

Furze99

https://www.boards.ie/discussion/comment/118301341#Comment_118301341

Eh.. your friend's sister might just be carrying most of the work towards care of an aging parent??

givyjoe

https://www.boards.ie/discussion/comment/118301341#Comment_118301341

This kind of attitude, is exactly why such clauses exist in the first place. Without going into any unnecessary further details, you don't have a friend in a similar situation, to be clear. Why someone would give up the house, is because they can't have a normally functioning life such as get married, have kids etc if they want to keep living there.

The clause is standard as added by solicitors, hardly likely they'd adding such clauses if they couldn't stand over them. I'd say the father in this case was pretty happy to have one of the siblings living with/caring for him up to his death. These terms can and do come with other stipulations such as not being able to move someone in, ceases to be valid if sibling buys another property, must buy the others out after x period of time etc.

Effects

https://www.boards.ie/discussion/comment/118301599#Comment_118301599

No, that's not the case sadly. She takes advantage of him. Her brother, who doesn't live there, does most of the looking after of their father.

Effects

https://www.boards.ie/discussion/comment/118301641#Comment_118301641

Did I touch a nerve? Are you trying to find ways of moving your boyfriend in without getting in trouble with the rest of your family or something?

givyjoe

https://www.boards.ie/discussion/comment/118301893#Comment_118301893

Do you have ANY knowledge to offer, relevant to the question asked? I've been pretty polite to this point offering clarifications to your 'gossipy' posts.

Effects

https://www.boards.ie/discussion/comment/118301985#Comment_118301985

No.

Del2005

You still haven't told us how it's going to be enforced? Who will be able to start the proceeding if the person move someone in? Who'll pay the court costs to get them evicted? Considering it takes 2 years to get a non paying tenant out I can't see it being quick or cheap to get someone out of a property left to them in a will.

If I was left a property with that stipulation met someone who I wanted to move in and had a family who where willing to start a court case over it. The property might accidentally get razed to the ground if I lost.

givyjoe

https://www.boards.ie/discussion/comment/118312869#Comment_118312869

Don't mean to be smart, but not concerned about any of that, it isn't a problem or concern in this case! I'm only looking for POV's on the specific question of what counts as 'living somewhere'. Again, this is a standard term in wills.

Effects

Staying there three nights a week constitutes living there.

givyjoe

https://www.boards.ie/discussion/comment/118314300#Comment_118314300

According to whom?

Effects

https://www.boards.ie/discussion/comment/118314669#Comment_118314669

Me. And a lot of other people.

givyjoe

https://www.boards.ie/discussion/comment/118314841#Comment_118314841

Are you taking the mick?! Do you or these other people have any relevant legal knowledge (or otherwise) to draw upon?! Didnt you say on Friday you didn't?! 🤦‍♂️

Effects

You just said you were looking for points of view, not relevant legal knowledge.

You seem to think it's a standard term in wills, so have you thought about engaging a solicitor for relevant advice? You don't seem happy with the information you are getting here.

givyjoe

https://www.boards.ie/discussion/comment/118315827#Comment_118315827

The specific question asked was '... What criteria would you use to consider if someone had been moved in/'living' in the deceased's property?..' Your reply.. again.. isn't exactly helpful, it's a seemingly arbitrary number based on well.. neither knowledge nor experience. Im looking for points of view from people with relevant knowledge (or experience) as I've stated to you twice..not necessarily from a legal professional I should add. It's been posted in legal discussion.. not after hours!

It IS a standard term in wills, where it's relevant to be inserted, no legal advice required. What doesn't seem to standard is how 'living somewhere' is defined. Someone else has already provided a relatively detailed post on what that might be. I'm asking a very specific question and looking for replies from people with experience/knowledge around this specific question.. Why are you continuing to offer opinions on something you said yourself you aren't knowledgeable in? There isn't a right or wrong answer, but one with nothing to back it up isn't helpful.

Effects

You need to read your own posts, and be clearer.

I'm only looking for POV's on the specific question of what counts as 'living somewhere'

I didn't say I wasn't knowledgable. I said I didn't have knowledge to offer you. You just come across to me like a rude know it all.

I have knowledge and experience on the subject, having managed many residential tenancies over the years.

givyjoe

Ah come on now, I specifically asked had you knowledge to answer the question. There's been been repeated asks for further non relevant info and you yourself made some rather unpleasant inferences all without offering any insight whatsoever. I've been more than polite considering the above. At no point before now have you clarified you had any relevant knowledge or experience to offer.. again, the question is specifically about what criteria would be used to determine someone as 'living somewhere'.. and unfortunately it's not as simple as an arbitrary number of nights per week. it's fine if you don't know it's seems to be by no means a straightforward answer.

The original post was clear enough for a fairly clear cut answer from one poster, and clarified further multiple times in multiple posts. If I knew it all, I wouldn't be asking the specific question. No legal advice required, no thoughts needed on enforcement of the clause, just knowledge/experience needed on what criteria could be used to determine the original question.

Peregrinus

There's a significant legal issue here, though, which is that the condition terminating the right of residence if the grantee "moves their partner in" could be void for uncertainty, if there's no reasonable consensus understanding of what constitutes "moving their partner in".

The OP says that the question is a theoretical one. I think the only realistic response is to say that it won't be possible to offer even a theoretical answer without seeing exactly, in full, without editing, the provisions of the will which (a) bequeath the property to whoever it is bequeathed to, (b) grant the right of residence to one of the children, and (c) subject the right of residence to the condition about not moving a partner in. It would also help to have some background on why the testator might grant a right of residence to just one child, and might attach the condition to it - the testator's intentions might be more easily ascertained if we knew the testator's motives.

Tl;dr: we need to know more about what's going on here.

givyjoe

https://www.boards.ie/discussion/comment/118318204#Comment_118318204

Peregrinus, I appreciate the long response but there really isn't a need for further information re: the criteria for 'living somewhere'. As I mentioned, this is a standard term in wills, where there is a sibling remaining/still living in a property before and after the parents death. As I clarified to others, albeit unnecessarily, the intention of the clause is to ensure that the remaining sibling isnt essentially made homeless by the remaining siblings by demanding/selling the property asap.. that might not even be possible but that's not a concern in or an issue in this scenario. That clause has the no partner (living) rule to ensure no third party comes along with, or later has a child potentially giving them a claim over the property, or preventing the property being sold when siblings so desire. That should cover the intent specifically enough.

There is no dispute here, no chance of court from within the family, just a theoretical question on the practical interpretation of what is considered 'living somewhere' so everything in the future is kept above board and so that no one other than the siblings can claim any rights over the property. You don't need to see the full, unedited will to answer that very specific question posed. There's nothing in it which would clarify any further and the intention of the clause isn't spelled out in the will, not sure why it would need to be. The intention of the clause was fairly self explanatory to us, even without solicitors clarification. It's a question which doesn't just apply to wills but doesn't seem to be well defined.

Peregrinus

The wording matters. If it's a standard clause in Irish wills you should be able to quote precedent wording without difficulty.

I note that you have already changed the wording you are asking about. In the OP the will provides for the right of residence to terminate if the grantee "moves their partner in", but now you say what matters is whether a third party is "living somewhere". There's a difference between moving in somewhere and living somewhere, and obviously it matters hugely whether the condition refers to a "partner" of the grantee, or just a third party, who could be a friend or a tenant or a licensee. So you're changing the wording in ways that obviously matter, even while telling us that the wording doesn't matter.

It really does matter. We don't need to see the full unedited will, but we do need to see the full unedited wording whose meaning, interpretation and application you are asking about.

Lenar3556

I think firstly, this is not a ‘standard’ term in a Will.

Consideration of a dependent child continuing to live in what has been the family home is something that does arise in practice, but there are other, arguably more equitable and certainly more robust ways of dealing with this issue than what you describe above.

There may currently be sufficient harmony between everyone in this instance, and maybe this will continue, but that often wouldn’t be the case, and poorly drafted clauses which don’t provide a reasonable degree of certainty can bring about untold difficulty in families.

givyjoe

https://www.boards.ie/discussion/comment/118318753#Comment_118318753

Apologies re: the wording on third party. I do, or I did mean specifically a partner of the sibling, not a friend etc, with the specific purpose of the will to prevent any partner (present or future) having a claim over the property, but it does also cover anyone 'residing' in the family home. The latter (being defined as any other person below) isn't a concern at all, as it's not relevant in this scenario - albeit it is also specifically not permitted under the clause.

The clause is ".. Devise and Bequeath to X, a right of residence in the family home... provided always that x shall not bring their spouse, partner or any other person to reside with them on the premises'.

There's one subclause removed from the above for privacy reasons. It doesn't affect the interpretation of the key part, i.e. reside with them on the premises. And again, the intent of the query is still theoretical but the problem is the clarifications we have received to date (elsewhere) on the scenario are 'fuzzy', hence the desire to have some knowledge/experience on what criteria might be used to ensure the clause isn't breached.

Not quite sure of the difference between 'moving in' and 'living somewhere', or the actual term in the clause 'residing'. They all essentially mean the same thing, no?

givyjoe

https://www.boards.ie/discussion/comment/118318988#Comment_118318988

Standard where the need arises and not at all unusual, it's in three wills that I'm personally aware of and the scenario where it's common is where there is a sibling acting as a live in carer for a parent. Equitable is subjective, particularly in consideration of the above situations.

The only uncertainty in this particular instance is around what 'residing' is defined as or interpreted to be, hence our desire to make sure future arrangements don't breach 'criteria' for this clause.