TENANCY IN COMMON
Q: My daughter committed suicide while her divorce was pending.
She left a will, which the solicitors said was valid. However, her children won’t get any money because she had not put ‘tenancy in common’ on things.
The husband sold the family home, took everything and even left me with the funeral bill, which he refuses to pay.
He got almost £200,000 for the house. What is this ‘tenancy in common’? They were married 30 years and she died two years ago.
A: In England and Wales, there are two main ways of owning a home. By default, most are owned as a beneficial joint tenancy. This means each owner owns all of the property and if one partner dies, their share automatically passes to the other. For one owner’s share to be passed to someone else by their will, then ownership must be changed into a tenancy in common.
To change it, the ownership needs to be ‘severed’ and the Land Registry informed. It appears that in your daughter’s case she had not severed the ownership.
There are many other implied questions in your letter, so my first instinct is to say that you must get legal advice because there may be questions over the solicitors who prepared your daughter’s will and assisted in the divorce. I suggest you start at Citizens Advice.
I ran your letter past Ben Tyer of GLP Solicitors (Bury), based in Greater Manchester. Clearly, he is not in possession of the will or the full facts. He did, though, offer some guidance, but this must not be construed as personal legal advice.
First, the executors have a legal responsibility to pay off any debts, including the funeral bill.
If there isn’t any money left in the estate to pay the bill, then the value of your daughter’s share of the jointly owned property could be recovered from the survivor (ie. her ex-husband) for the benefit of the estate. There is a time limit for doing so, though.
We are assuming your daughter wanted her children to inherit some money when she died. The question therefore is could her children still inherit any?
If your daughter had exhibited any suicidal symptoms, her legal advisers ought to have made severance, and a will, a priority.
Alternatively, if there was a strong intention and agreement between the parties that ownership of the property was to be severed, before your daughter’s untimely death, this may be sufficient for severance to be deemed to have occurred and for the children to inherit their mother’s share of the property.
Furthermore, depending on when the will was drafted, questions could arise as to why a will was prepared in such a way if there were no assets other than the property to pass on and whether your daughter was advised about severing the tenancy.
There’s another important aspect to consider: the possibility of the children making an Inheritance Act claim.
In this case, the moral aspects of how the estate was disposed of are unlikely to have any effect. Instead, it needs an objective assessment of the financial provision made to the children and whether they had a reasonable expectation of having living costs met by the deceased.
However, aside from any merits, I note she died two years ago.
Any application under the Inheritance Act must be made within six months of a grant of probate. Outside this time limit, the court’s permission will be needed, which is usually given only in exceptional circumstances
You can see the original Daily Mail Article here