How do I give my partner a right of residence after I die?

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Ubankmove

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Hello,
I am 25 yrs into 30 yr mortgage. I met my partner 9 yrs ago, we are living together almost 3 years.
Home current market value 380000. I am 48 and partner 51.
I would like partner to have lifetime residence before the house is inherited to my 5 niece/nephew aged 7 to 27.

My partner may possibly inherit family home but it would be a money pit only 3 rooms are being used .... and the field in front which has the same access gate to the home is being left to other sibling

I'd like my partner to have a comfortable home. God forbid

What are implications of this for partner
 
You need to think very carefully together what you and your partner want to do in the future. As Clubman says the value of your home and mortgage status and potential inheritance of your partner are irrelevant.

You sound like you are both in a committed relationship and see yourselves together for life. So the simplest way forward is for you both to marry and you make wills leaving each other any assets on death. You and your spouse can also stipulate that on death, if the other spouse has predeceased then all goes to the 5 nieces and nephews. Job done, nothing to worry about.

If you do not marry and if you make a will leaving your partner a right of residence but leaving the property to the 5 nieces and nephews. You die at 50 and your partner lives another 50 years and dies at 102. What happens during those 50 years? Will the 5 maintain the house, pay the insurance, upkeep and taxes. After all they are the owners. Or will the oldest at 30 say, I am getting married, I want my cut now, and try to sell the house, make it difficult for your partner to continue to live there? Or will the youngest now aged 7 realise at 25 they have to pay local property tax, which has skyrocketed for houses not being lived in by the owner and the roof is leaking and needs major repairs and this is all because of an aunt they barely remember who wants this 70 year old to live in their house until he dies. All of these things can and do happen. It is impossible to predict the future.

Or what if you are 80, and your partner 82 and you end you in a nursing home for 3 years and your estate needs to pay 21% of the value of your assets for fair deal within 12 months. And the only way it can happen is if the house is sold so your partner is offered 30% of the value of the house as a fair value for his right of residence and he leaves, the house is sold, and the 5 nieces and nephews get 10% of the value of the house each, revenue get 20% and your partner gets 30%, but is 85 and has no home to live in.

So in essence you need to get advice from your solicitor on what is the best approach to take that gives you what you want, a home for your partner to live in, in all circumstances.
If you just say to your solicitor, I have a house I want to leave to my nieces and nephews when I die and I want to give this stranger (not a relative) the right to live there until he dies, then that is what you will get but it may not serve any of you as you wished dependant on future circumstances, which you cannot predict.
 
Clamball has really set out the complications of what you are proposing.

It is a good general principle to make things as simple as possible.

Make a will. Leave your home to your partner. End of story. That is the best way for them to have a long term right of residence.

If you have other assets, leave them to your nieces and nephews.

Tell your partner that you are doing this and would appreciate if they made a will leaving the house to your nieces and nephews. You can't enforce this and your partner might change their mind after you die.

If you split up, you can change your will.
 
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The above approach is best, but if you want to complicate a bit make a will giving your partner the right to buy the house from the estate for €200k. This would leave your nieces and nephews with some cash.

But you would have to make sure that your partner has the €200k or can raise it.
 
I second the suggestion that you should get married.

This does not have to be a big affair but just a registry office job. This also makes sure that your partner pays no CAT - Inheritance Tax.

In particular, if you get terminally ill, you should get married immediately. They would also get the Widow's/Widower's pension.
 
Brendan Burgess said:
Make a will. Leave your home to your partner. End of story. That is the best way for them to have a long term right of residence.

If you have other assets, leave them to your nieces and nephews.

Tell your partner that you are doing this and would appreciate if they made a will leaving the house to your nieces and nephews. You can't enforce this and your partner might change their mind after you die.
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You can make a formal, written agreement for mutal wills under which A undertakes to make a will leaving the house to B, if B survives A, in return for B undertaking to make a will leaving the house, if B does inherit it, to A's nieces and nephews, and not to change that will.

A needs to tell their neices and nephews that this agreement has been made, and needs to give them a copy of it.

Then, if B does inherit the house, and later makes a will leaving the house to someone else, when B dies A's neices and nephews can invervene in the probate process, launching court proceedings arguing that it would be inequitable to let B's family benefit from B's violation of the agreement, and seeking to have the court declare that B's executor holds the house on trust for A's neices and nephews.

In practice, actually enforcing the agreement by proceedings as outlined would be an absolute train wreck, but it could be done if really necessary.

The real merit of such an agreement, though, is that documents a clear, shared understanding of what is to happen to the house, and it impresses on both A and B the serious nature of what they have agreed. If B has signed an agreement like this, they are much less likely to make an inconsistent will leaving the property to someone else.

(There's still the risk, of course, that while B owns the house they might mortgage it or sell it, in which case on B's death A's nephews and neices would have to chase the proceeds of the house rather than the house itself. And there might be no proceeds left if, e.g., the house was sold to pay for B's care in a residential home.)
 
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"You can make a formal, written agreement for mutal wills under which A undertakes to make a will leaving the house to B, if B survives A, in return for B undertaking to make a will leaving the house, if B does inherit it, to A's nieces and nephews, and not to change that will."
- That's not really enforceable in Ireland.

You have Freedom of Testimony Disposal in Ireland, which entitles you to will stuff to whomever you want (other than the inherent entitlements of spouses, joint owners, children, etc).

Any document promising to will X to Y is automatically overriidden by an actual will leaving X to Z. Irish law recognizes the will as the ultimate governing document for estate distribution. A contract promising to leave X to Y is exactly as valid as a text from granny saying "I'll leave you me ring"... i.e. unless it's also in the will, it's worthless.

Interestingly, theoretically a court could award damages against the disponer for breach of contract, but that won't affect the disposal of the assets.
 
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The court can impose a trust on the assets, though. If I get the assets in the first place by representing to my partner that I will bequeath them to her family and then, after my partner has died I make a will bequeathing them to my family, the court will reckon that it is unconscionable that I should be able to profit from such a fraud, and that to allow me to pass the benefit of the fraud to my family would be a form of unjust enrichment for them. So the court responds to this by imposing a trust on the assets — they still pass to my family, but subject to a trust in favour of my partner's family, who I promised to leave them to.

The situation doesn't arise very often, and most of the cases in which trusts are imposed in these circumstances are from England or other common-law jurisdictions. But the legal background is the same — all these jurisdictions have freedom of testamentary disposition like ours, and they also all have principles of equity that impose constructive trusts in order to frustrate fraud and prevent unjust enrichment, agains like ours.

But a contract for mutual wills can still fail to work as intended. Suppose I inherit property from my wife and then marry again. I dutifully make a will leaving the property to my first wife's family, as promised. My second wife has her Succession Act rights and she can't be forced to waive them so, when I die, she can insist on getting a slice of my estate. Depending on how much of my estate is made of of property inherited from my first wife, her slice might encroach on the assets that my will leaves to my first wife's family. I don't think there are any decided cases on what happens in this situation. Does her legal right trump the contract for mutual wills? Or does she get the assets subject to the constructive trust imposed in order to give effect to the contract for mutual wills?
 
It can get messy. An elderly cousin left her house (inherited from her parents decades ago) to her siblings jointly. And the last one to live gets it free and clear (language used in the will). She expressed a desire for one of them to live in it and the next generation to inherit it eventually.
These 2 are close in age and some 30 years younger than her. (Adopted by her biological mum).
Neither live in the house, neither is minded to maintain it. They haven’t agreed to sell it either and arent sure they can given her wish for the following generation to inherit. Also she didn’t define who she meant by the next generation.

One has kids and spouse the other is single but has a bio nephew from a deceased bio sibling, as well as nieces and nephews from adopted sibling. So their intentions are not simple.

It’s not worth much but every year gets worth less and less.
 
Annieindublin said:
It can get messy. An elderly cousin left her house (inherited from her parents decades ago) to her siblings jointly. And the last one to live gets it free and clear (language used in the will). She expressed a desire for one of them to live in it and the next generation to inherit it eventually.
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Which underlines what I said earlier. Keep it simple. Leave the house to your partner with no constraints. That is better than leaving it to the legal profession.
 
TomEdison said:
You can make a formal, written agreement for mutal wills under which A undertakes to make a will leaving the house to B, if B survives A, in return for B undertaking to make a will leaving the house, if B does inherit it, to A's nieces and nephews, and not to change that will.

A needs to tell their neices and nephews that this agreement has been made, and needs to give them a copy of it.

Then, if B does inherit the house, and later makes a will leaving the house to someone else, when B dies A's neices and nephews can invervene in the probate process, launching court proceedings arguing that it would be inequitable to let B's family benefit from B's violation of the agreement, and seeking to have the court declare that B's executor holds the house on trust for A's neices and nephews.

In practice, actually enforcing the agreement by proceedings as outlined would be an absolute train wreck, but it could be done if really necessary.

The real merit of such an agreement, though, is that documents a clear, shared understanding of what is to happen to the house, and it impresses on both A and B the serious nature of what they have agreed. If B has signed an agreement like this, they are much less likely to make an inconsistent will leaving the property to someone else.

(There's still the risk, of course, that while B owns the house they might mortgage it or sell it, in which case on B's death A's nephews and neices would have to chase the proceeds of the house rather than the house itself. And there might be no proceeds left if, e.g., the house was sold to pay for B's care in a residential home.)
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This is unbelievably convoluted and highly likely to be unenforceable.
 
Ubankmove said:
Hello,
I am 25 yrs into 30 yr mortgage. I met my partner 9 yrs ago, we are living together almost 3 years.
Home current market value 380000. I am 48 and partner 51.
I would like partner to have lifetime residence before the house is inherited to my 5 niece/nephew aged 7 to 27.

My partner may possibly inherit family home but it would be a money pit only 3 rooms are being used .... and the field in front which has the same access gate to the home is being left to other sibling

I'd like my partner to have a comfortable home. God forbid

What are implications of this for partner
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You can leave them a right of residence. I'd put in a clause that it's exclusive and that your partner maintains it and pays property taxes, so nieces/nephews cannot dictate what your partner does to it in his/her lifetime and they also have no responsiblites as regards it. It should also specify that if your partner no longer resides there (care home/moves to Australia) that then the right of residence ceases.

A competent solicitor should be able to draft this for you.

Do not tie your relatives to the house, make sure it can be sold by them so they can divide it up amicably.

It's not entirely clear why you don't get married. Which solves a whole host of problems. And taxes !
 
kalooki said:
That's not really enforceable in Ireland.

You have Freedom of Testimony Disposal in Ireland, which entitles you to will stuff to whomever you want (other than the inherent entitlements of spouses, joint owners, children, etc).

Any document promising to will X to Y is automatically overriidden by an actual will
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It really is enforceable in Ireland.

This entire thread raises relatively complex issues. OP needs to take legal advice. From a lawyer.

For doubters, excerpt from a 2018 Irish judgment:

I therefore propose to make an order for the specific performance of the testamentary contract described above. That order will require the defendant, as personal representative of the deceased, to transfer to the plaintiff the 90 acres that were identified during the course of the court hearing...... .....That is the extent of what was promised to the plaintiff under the testamentary contract. The gift to him under the 1997 Will is more extensive than what was promised to him but, in my view, the plaintiff is only entitled to enforce the promise. He is not entitled to take the benefit of the 1997 Will.
 
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Bronte said:
This is unbelievably convoluted and highly likely to be unenforceable.
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If you set it up properly it is legally enforceable (though enforcing it is expensive; it requires a High Court action).

But, as I said in the post to which you replied, the main benefit of a contract like this is not its enforceablity; it's that it greatly reduces the prospect that your partner will bequeath the property they get from you away from your family. The main benefit of contracts generally is not that they get enforced through court action; it's that they are observed.
 
TomEdison said:
The main benefit of contracts generally is not that they get enforced through court action; it's that they are observed.
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Maybe in the case of two willing and cooperative parties but in this case there seem to be other parties involved (not necessarily legally/contractually) which seems to complicate matters? My gut feeling is to agree with @Bronte. Just getting married (if possible) seems a lot simpler?
 
Getting married is a good idea in this situation (we haven't event discussed the tax problems that this would solve) but it doesn't adress the particular problem of leaving what is your family property to your spouse, but arranging matters so that it eventually comes back to your family, and not to your spouse's family. That's what a contract for mutual wills seeks to do, and it may be appropriate for a married couple to make a contract for mutual wills.

Consider the following scenario:

A and B have both been married before. They each have children from their first marriages . They each already have some assets, including a house. They marry. They do not expect to have more children. They each sell their houses, and they buy a house together in which they will live with those of their children and step-children who are still minors. They own the house as tenants-in-common, in shares reflecting their financial contribution to the purchase.

In this scenario, it's not unreasonable to plan that the first spouse to die will leave property (their share in the family home, possibly more) to the other spouse, on an agreement that, on the death of the second spouse, that property will be bequeathed back to the family of the first spouse.

This outcome won't automatically result from the fact that they are married. In fact, if they made no wills, then on the death of the first spouse - say, A - two-thirds of A's estate goes to B and one-third to A's children. On the death of B, assuming B does not marry again, the whole of B's estate, including what was inherited from A, goes to B's children; nothing comes back to A's children. In other words, the children of the spouse that survives make out like bandits; the children of the spouse that dies first lose out badly.

So they do need to make the right wills to secure the outcome they want. Each of them needs to understand that, if they are the surviving spouse, they have to not change their will so as to deprive the children of the other spouse; each of them also needs to be confident that, if they are not the surviving spouse, the other spouse will not change their will.

in a case like this, a contract for mutual wills is just the business. As I say, its main value is not really that it can be enforced in the High Court if necessary (though it can); it's that discussing, concluding and signing a contract of this nature means that each spouse has good understanding of the situation and what it requires, and each can be confident that the other spouse shares this understanding.
 
You don't distrust; the contract shows that. You don't — unless you're very stupid — enter into contracts with people you distrust.

As I keep saying, the point of the contract is not to haul their heirs into the High Court. It's to establish and document a clear, shared understanding of what the couple will do to ensure their families are treated fairly with regard to inheritance.
 
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