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JGM
JGM, Solicitor
Category: Scots Law
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Experience:  28 years as a practising solicitor.
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My Father died some ten years ago. My Mother died last year.

Customer Question

My Father died some ten years ago. My Mother died last year. She left a will leaving her estate to her children split equally. My brother has lived with my parents for 25 years and still lives in the house. My Mother wrote a codicil to her will saying that he could stay in the house if he chose to do so. Myself and my siblings all pay rent or a mortgage, but my brother looks as though he plans to stay rent-free in my Mother's house indefinitely. What can I do?
Submitted: 1 year ago.
Category: Scots Law
Expert:  JGM replied 1 year ago.
Thank you for your question.

If your mothers wishes were that your brother could stay in the house for as long as he wanted then she may have created a liferent in his favour which means that he would be entitled to remain in the house. Can you give me the wording of the codicil please.
Customer: replied 1 year ago.

Yes. It is:


For the attention of my Executors. Notwithstanding the provisions of my will of [date of will in 2004], it is my wish that [the address in Scotland] remains [name of son's] home if that is his wish. [My Mother's name and date of 'codicil'.]


 


I did speak to her about this when she was alive and she just didn't want my brother turfed out after she died. A lawyer and myself were both present when she wrote this, but neither of us said much.

Expert:  JGM replied 1 year ago.
This is actually quite a difficult situation. The codicil is badly worded. It says "it is my wish" as opposed to "I direct my executors....."

It does not prevent the sale of the house. It does not confer a liferent interest to the son in as many words. It is informally worded and open to interpretation. There is no period specified.

A liferent interest created in a will, known as an imperfect liferent because it is not conferred in a registrable title deed, usually creates a trust whereby the person granted the liferent can stay in the house and get the use of it for, life or for a defined period or until he renounces the liferent.

There are two arguments here. The first is that there is a liferent contained within the codicil and that the son has a right to remain in the house until he dies.

The second is that there is no liferent but that the son can stay in the house until alternative arrangements can be made to accommodate him, either by him buying out the other beneficiaries by getting a loan or mortgage or by him taking his legacy and buying another house elsewhere.

This I'm afraid is a call for the executors to make. They have to take a view on what your mothers wishes actually were as the codicil is not clear. I have to say that I would have to argue the former given that he has stayed in the house for 25 years already and also given the unconditional wording of the codicil.

If that is the case then the house cannot be sold by the executors and has to be held by them in trust during the period of the son's continued occupation.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 7273
Experience: 28 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you. This confirms what I was told earlier. As it happens I am the sole Executor and as I was present when my late Mother wrote the codicil, this uncertainty is my fault. I should have asked her to specify a time period but as the time she was rather upset about what would happen to my brother so I just left it as it was.

Expert:  JGM replied 1 year ago.
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