Willing a share of Jointly owned property to another party

[naomi24]

I am under the impression that when two people own a house jointly, they both own all of it, rather than half each. However, a friend in a miserable marriage tells me her husband intends to will his share of their property to their child, thereby forcing the sale of the house upon his death, and leaving my friend with her half of the proceeds and homeless. I doubt he can do this, but does anyone know for sure?

[factor-fiction]

Maybe there needs to be something said about "joint tenants in common".

Yes, a few threads on here have talked about a surviving spouse owning 50% and the children own the other 50%, yet I know of a spouse who claimed she had to sell her half and move out so her children could sell the house

[NOX]

I see no reason he can't do this, in fact it's a pretty common scenario I think .

[naomi24]

The reason I ask is because I once had to sort out the affairs of someone who died intestate, leaving a widow (who owned the property jointly with him) and his own daughter from a previous marriage. In that instance the daughter tried to claim his share of the property. I consulted a solicitor who told me that when a property is jointly owned, both parties own all of it - not half each as is commonly assumed - and therefore the daughter could not claim his share because the property now belonged wholly to the widow. (The end of the story there was that when the widow died, also intestate, the whole lot went to her next of kin – and the husband’s daughter got nothing).

[NOX]

Yes but he died intestate- big difference. If you die intestate it goes to your next of kin which in this instance was his wife- so all that makes perfect sense.
You asked about someone ' willing' property to someone else, which is quite possible.

[naomi24]

But surely the thing about both owning all of it rather than half each would still apply? This is what I want to find out.

[NOX]

I've told you the answer, I have no idea about what happened with another property belonging to someone else years ago. You asked about this scenario and I told you. I think you might however be getting confused about being 'jointly and severally liable' if there was still a mortgage on the property, but again as far as I am aware the man can will his half to whomsoever he wishes- that's why it's called a will.

[cathfromsaron]

yep, joint tenants v tenants in common is the issue here!

BUT she needs to know he will die first for that to be an issue, and he can't actually make a will with illegal clauses or for property he doesn't own!

[Barmaid]

Its been hinted at but no one has explained it.

There are two ways of jointly owning property. One is as "joint tenants". This is where both parties own the whole property together in "undivided" shares. If one dies, the joint owner inherits the whole of the property irrespective of the terms of the will or any intestacy.

The other way of owning a property is as tenants in common. this is where the co-owners own a share each of the property. It's normally 50/50 but can be different proportions. In this circumstance, each co-owner can bequeath his share of the property to whoever he likes.

In the situation described, the husband can bequeath his share of the property to the child if it is owned as tenants in common (although there may be things the surviving spouse can do to avoid a sale). If the property is owned as joint tenants, it matters not what his will says, the wife will inherit the property by survivorship. However, if the property IS owned as joint tenants, it is very easy to sever the joint tenancy in order to change the ownership to tic - all that is required is service of a notice.

[naomi24]

Thanks very much for clarifying that Barmaid. Very helpful and very much appreciated.

[HannaJayne52]

My father and mother owned their bungalow on a Tennants in Common basis and I got my fathers half when he passed away.
There was a clause on the land certificate saying no sale charge or transfer of the property without the consent of all parties so I could have not sold the property without Mum's consent.
I could therefore force the sale of the bungalow.
I know when dad passed away Mum had to sign a form for Dad's half to be transferred into my name.
I am a little unsure what would have happened if she refused to sign it.

Hanna

[EDDIE51]

I would have though that even if the husband did will his share of the house to his daughter , the wife would still have the right to live there for life.
So even in this case a sale could not be forced as the daughter would only be able to sell a 50% share of a house with a sitting tenant . Not something that would attract much intrest.
Similar situations have been mentioned where one partner with a jointly owned property goes into a care home and the council have tried but not been able, to force a sale to pay care fees. The value of a 50% share in a house with a joint owner who has the right to live there for life has been assessed as effectively zero so no sale can be forced.

[Barmaid]

Eddie, its actually quite different.

If the daughter inherits one half of the house, she CAN force a sale by making an application the court under the Trusts and Land and Appointment of Trustees Act 1996 because she is a co-beneficial owner. However, this is subject to any potential claim the wife may have under the Inheritance (Provision for Family and Dependents) Act 1975.

The situation with care home fees is different. The LA do not have any beneficial interest in the property and thus cannot bring an application for sale. The CRAG guidance states that they cannot take into account a half share of property because of the valuation difficulties but that is merely valuation methodology and has nothing to do with the fact that the co-owner would still be able to force a sale if he/she decided to do so.

[HannaJayne52]

Hi Barmaid

On our land certificate it clearly states I cannot sell or transfer the bungalow without Mum's consent and I understand this is the situation with most Tennant in Common ownership.
Surely if I tried to sell it this clause would stop me.

Hanna