F.a.o. Barmaid

[whiskeryron]

Hi Barmaid,

I hope that you are feeling much better now & that you managed to help Desktop get sorted.
I have another matter that I would like your opinion on if you can spare your very valuable time on.
I have a very dear friend whose partner died some years ago who willed his house to his two daughters but stipulated that my friend could live in the house rent free for the rest of her life providing that she did not cohabit or marry another person to live in the house with her. She has now met someone & fallen in love again who lives with her but vacates the house every weekend in order to meet with the said provisos. My question is can this still be legal in this day & age or is it interfering with the freedom of the individual ? I would appreciate your opinion on this matter.

WR.

[jno]

I can't see that anyone's freedom has been interfered with. Your friend has received a conditional gift and is fulfilling the conditions; but as she wasn't the one who made the gift she can't change the conditions.

Broadly... it sounds as if her partner wanted to ensure she had somewhere to live, and assumed that if she found another partner he'd provide living quarters (not necessarily a great assumption, but one he was entitled to make) so the house could then go to the daughters.

[jno]

hang on, I didn't quite read that correctly. So they are living together in the house? Just moving out at weekends? Sorry, that shounds like a sham attempt to observe the conditions. It would still be their main residence (at the risk of sounding like an MP fiddling his expenses).

[Canary42]

I'm sure the deceased made the condition so that some gold-digger couldn't muscle in on the house, which is possibly what's happening.

[chrissa1]

I don't think gold digging applies here, because it's not her house. She/they can't sell it or borrow against it. The man could gain by selling his own house and live rent free with the lady, but that's about it, surely.

[whiskeryron]

There is no question of ''the man'' selling his own house as he also lives in rented accommodation, so it is purely a question of the happiness of two people.

WR.

[ummmm]

What if the daughters agreed that he could move in?

[Rosetta]

or she could move in with him.

[jno]

the happiness of the daughters might also come into play? That's what the deceased partner was trying to ensure, by the look of it. And they're effectively being cheated of their legacy at the moment. Can't your friend go and live in her new man's flat?

[jno]

yes, ummmm makes a good point: if the daughters don't actually mind, then they (who are by rights the new owners of the house) are simply agreeing to take in two non-paying tenants, which they are allowed to do.

[sebhfhion]

Whiskeyron: with due respect if these two people are happy together they will be happy living in his rented house without and 'strings' surely? You don't say how old your friend is, but i think she should move on physically as she has done emotionally and leave the house to its rightful owners.

[ummmm]

Is she not the mother to the daughters?

[sebhfhion]

thats a good point Ummmm, but if she was the daughters mother surely the deceased would have left the house to all three equally?

[whiskeryron]

No.

[ummmm]

That's what I was thinking.

[FredPuli43]

Dum se casta vixerit ! We used to have a condition in divorce, and I think in some trusts, called that; it means "for as long as she is chaste"; the effect of which was that the woman's rights ended if she married or cohabited. We don't see it now, the law having moved on (and stopped talking in Latin !), though it is possible that a woman who marries again will not be get maintenance from her ex.

There must be case law on this for the circumstances you describe, which Barmaid will know. The house is now the daughters'. The principal condition is that the friend, of either sex, has the right to live there for life . The non-cohabitation part strikes me as contrary to the friend's human rights and against public policy nowadays. Be interesting to hear from BM for definitive answer.

[jno]

given that the house is the daughters', I would have thought the only thing a court could do is strike down the whole condition or leave it as is. Either way, your friend could be evicted, either because the condition was invalid in the first place, or because she is in breach of it.

Is she hoping the court would invalidate the entire will and hand her the house? My guess is this wouldn't happen, but lawyers will give you a better answer.

[whiskeryron]

No jno nothing like that, my whole question really I suppose is to try & ascertain if the circumstances are reasonable. For instance I could leave my house to my daughter on the understanding that she never eats curry in the house or has t/v or keeps a dog, all I think you will agree are unreasonable demands. My friend & her new partner are trying to uphold the terms of the will ( which I believe mentions permanency with regard to living together) so he goes to his own home each weekend ( similarly I believe to living in a static caravan or home that has only a 10 month agreement where occupiers move out for 2 months each year.) I have suggested to my friend that she takes out a rental agreement with the daughters (owners) for a nominal amount which would then make her a paying tenant with all the safeguards that come with such an arrangement, her answer is that they (daughters) are happy with the present arrangement & she does not want to rock the boat.
It is worth mentioning I think that my friend is in her late 70s & her partner is in his early 80s & if you could see as I do how happy they are together you would understand my original question more.

WR.

[chrissa1]

Considering the age of your friend and her partner, surely the daughters wouldn't begrudge her, her happiness in the last years of her life.

[FredPuli43]

No,jno,it is always possible for a court to ignore offensive or unenforceable terms whilst maintaining the essence of any trust or contract; an obvious example would be if a standard agreement to provide services to the public had the words "except to black men" in it. The contracting provider would ignore that provision and the court would not enforce it but would hold the contract was otherwise valid, its purpose being to supply to the public. Whether this term in a will falls into a like category is for BM to say. I suspect that the court would hold that the essence is the 'for life' cause and that only the chastity provision is not to be applied.

[whiskeryron]

// Considering the age of your friend and her partner, surely the daughters wouldn't begrudge her, her happiness in the last years of her life. //
They do not begrudge & are quite happy with the present arrangement, but my friend still feels duty bound to stick to the agreement. I am trying to find out if it is reasonable in law.

WR.