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

TomEdison said:
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.
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Can the spousal legal right share be usurped by such contracts?
 
MOB said:
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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That’s a very complex case. Involving enough money for the High court judge to be able to effectively change the mother’s will. Because he felt the son was unfairly treated. Which on the facts of it would seem to be case.

www.irishlegal.com

High Court: Son who was promised 90 acres of land successfully challenges mother’s will

A man who left school at the age of 15 to work on the family farm, and who was promised a 90 acre plot by both his father and mother before their deaths, has successfully challenged his mother's will in which he was left just three acres after a family rift involving his in-laws. Finding that the ma
www.irishlegal.com www.irishlegal.com

All in all though the very idea of heading to the High Court is only for the very rich or the very poor. Not for mere mortals.
 
@TomEdison The contract of mutual wills is an excellent idea and would work very well in the scenario you described of a blended family and for the original poster. But I have been mulling it over and I do wonder is it the best thing to do in many cases. It is the “ensure their families are treated fairly with regard to inheritance” is where I think this idea falls down, not legally but in how we should live our lives.

Assets should be for the living to use to live their lives, making the best use of them for their own life. We are all living longer and healthier and should be considering our retirement years as an era of enjoying living rather than protecting our assets for the next generation. Parents are living into their 80’s & 90’s putting their adult children in their 50’s & 60’s when they die. They will in the main be well established in their lives and in theory should have no need of a windfall. An inheritance would have been much more needed in their 20’s and 30’s when they were stretched financially at the start of career and property ownership.

Take the case of your blended family. Say A & B were 35 and the kids were 10. After 55 years of marriage A&B die at 90 and their two kids aged 65 now inherit according to the contract of mutual wills. Because of the tenants in common the children inherit 70:30 the assets. This really puzzles them because for the past 55 years they have truly felt mum & dad loved them both equally. They never felt like a child to one parent and a step child to the other parent. They can’t understand why one child gets more because a lifetime ago A had more assets then B. They really cannot understand why this should make such a difference to their lives now, 55 years after their parents divorced and remarried.

What I am trying to say is that with a long passage of time it should not matter where the original assets came from and a young blended family should be encouraged to make the family home a joint tenancy and leave a simple will, leaving everything to the other spouse on death, and to the children equally if the spouse is dead.

And that is why I think the original poster should marry and have a will leaving all assets to their spouse or if he is dead to the 5 nephews and nieces equally. Marrying is the most tax effective way of transferring assets and as it could be decades before both people die and it being impossible to predict the future the will should be as simple as possible.
 
Bronte said:
Can the spousal legal right share be usurped by such contracts?
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You're thinking about a case where A and B make a contract for mutual wills, A dies, B inherits Blackacre from A, and in accordance with the contract for mutual wills makes a will bequeathing Blackacre to A's children. B then marries again, to C. When B dies, C asserts their rights under the Succession Act and seeks to claim Blackacre, or a part of it. Can the contract for mutual wills trump the Succession Act rights?

SFAIK there hasn't been a decided case on this in Ireland.

In prinicipal, though, the answer seems to be yes, it can. English cases which have imposed a constructive trust to give effect to a contract for mutual will have held that the trust arises at the point when the first spouse dies and the second spouse inherits. So, in this case, the only interest B ever owned in Blackacre was subject to a trust in favour of A's children, and all C can claim out of B's estate is an interest in Blackacre, subject to a trust in favour of A's children (which would be worthless to C).

Clamball said:
The contract of mutual wills is an excellent idea and would work very well in the scenario you described of a blended family and for the original poster. But I have been mulling it over and I do wonder is it the best thing to do in many cases.
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Sure. Obviously the circumstances of every are different, and it's up to A and B to decide what is the best thing to do for them and their respective families (any any more children they may have together). In the one case that I was involved in where there was a contract for mutual wills the couple both had children who were already indpendent adults, so they never all lived together as one big blended family. Or you could imagine a situation in which A has children but B does not; if B survives A and then dies without making a will, the farm that has been in A's family for many generations passes on intestacy to B's second cousins in Nova Scotia and A's children get nothing.

The contract for mutual wills is just a tool fpr acheiving a particular outcome. It's only useful to the extent that it's the outcome the couple concerned think is appropriate, and the one they want.
 
TomEdison said:
You're thinking about a case where A and B make a contract for mutual wills, A dies, B inherits Blackacre from A, and in accordance with the contract for mutual wills makes a will bequeathing Blackacre to A's children. B then marries again, to C. When B dies, C asserts their rights under the Succession Act and seeks to claim Blackacre, or a part of it. Can the contract for mutual wills trump the Succession Act rights?

SFAIK there hasn't been a decided case on this in Ireland.

In prinicipal, though, the answer seems to be yes, it can. English cases which have imposed a constructive trust to give effect to a contract for mutual will have held that the trust arises at the point when the first spouse dies and the second spouse inherits. So, in this case, the only interest B ever owned in Blackacre was subject to a trust in favour of A's children, and all C can claim out of B's estate is an interest in Blackacre, subject to a trust in favour of A's children (which would be worthless to C).
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Yes that is what I meant. And given that the Succession Act is pretty much set in stone * I'd find it hard to credit this complex 'contract for mutual wills' is a road anyone would travel down. Or that any solicitor would advise should a route. Especially given you cannot think of any court case to back up your suggestion of a way around the spousal legal right share.

Now you're taking it further and seeking to evoke English Trust case law on Trusts.

The last, and very complex, trust case in Ireland that I recall is the Dunne family one. Only people of their ginormous wealth can get involved in such things. Old Ben Dunne sought to use a trust with the best legal brains in Ireland and his children sought to undo it. Involving vast sums of money and the purchase of political favour. Somehow, and I cannot remember how, the Trust was undone.

There is currently a very very complex Trust sale case in court. The legal ramifications of which may result in a very big interest from revenue.

So let's go back to the OP who is talking in mere pittance and give them sound advice.

(*apart from some, dare I say it, questionable, actions by judges to set aside wills based on the S117 in hard cases)
 
Brendan Burgess said:
I will repeat, keep it simple and leave the house to your partner.

Ask them to make a will leaving the house to your nephews, but don't make it a legal requirement.

If you mess around with a contract for mutual wills and then you split up, you will be in all sorts of trouble.
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While agreeing with the keep it simple mantra I think the right of residence options is equally simple. Should I be widowed and meet another partner I would not marry. But one might want to make sure a long term partner always had a roof over their heads while seeking to make sure wealth transferred to my children. The OP is in a case of nephews and nieces. So it's not exactly the same. But it is the wish of the OP.
 
It's perhaps notable that the original poster hasn't responded to any of the many suggestions offered so far in this thread. Maybe they're not really that interested in or serious about it?
 
Bronte said:
Yes that is what I meant. And given that the Succession Act is pretty much set in stone * I'd find it hard to credit this complex 'contract for mutual wills' is a road anyone would travel down. Or that any solicitor would advise should a route. Especially given you cannot think of any court case to back up your suggestion of a way around the spousal legal right share , , ,
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Well, bear in mind that I've said all along that the main advantage of the contract for mutual wills is not that you can enforce it in the High Court; it's that you very probably won't have to.

It's not a complex document; it's typically a one-pager, and it's certainly shorter than the wills which accompany it. And, to be clear, it's nothing like establishing an express trust. Comparisons with the Dunne Family Trust, and the litigation around it, are not really in point.

Bronte said:
While agreeing with the keep it simple mantra I think the right of residence options is equally simple.
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It is simple. But practitioners tend to warn against it, because they have seem too many cases where it went wrong. The main issue is that the occupant of the house has no valuable interest in it, and is therefore not motivated to maintain it, or even to look after it, so properties that are occupied under a right of residence tend to deteriorate. And the arrangement starts to come unstuck where, e.g. they are elderly and the house is no longer suitable for them. They can't sell it and buy a more suitable property, or raise money on it to finance a move elsewhere. The contract for mutual wills can provide flexibility in relation to changing circumstances that a right of residence can't.

There is no perfect solution here. You're trying to balance your concern for, and duty towards, your partner with your concern for, and duty towards, your family; the two are in tension, and somethign has to give. My experience suggests that problems most often arise when the client doesn't accept this; won't accept that choices must be made and that competing desires need to be reconciled. So they bull into a solution, having convinced themselves that it is the best solution for everyone. In the event, it turns out not to be, and the whole things ends up in court because, basiscally, somebody feels that proper consideration wasn't given to their interests.
 
I don’t think we should try and control the future from beyond the grave.

It comes up with wills or how land is used and while the intentions are usually good there is always a potential for unknowns on how the future will work out.

We get one shot at death to hand over what we own to who we trust. Then it’s up to them to do as they please.
 
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