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father transfers a life interest of a property to his wife.

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The remainder to 4 children...
father transfers a life interest of a property to his wife. The remainder to 4 children as tenants in Common as to an undivided one-one-quarter interest.
Oldest child passes away before Mother. Son is very ill and marries 2 wks before his death leaving every thing he owns to his wife. He verbally tells his executor that "my share of the homestead is to go to my brother Murray" Does the mother have any legal right to her deceased sons share since she is to have a life interest in the property and is still alive? Does a verbal communication with the executor have any legal stance?
Mother has now passed away also with out a will. What course of action is required to have the remaining 3 siblings properly stated on the property as Joint Tenants?
Submitted: 8 years ago.Category: Canada Law
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Answered in 16 minutes by:
6/24/2010
Lawyer: Debra, Lawyer replied 8 years ago
Debra
Debra, Lawyer
Category: Canada Law
Satisfied Customers: 106,005
Experience: Lawyer
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debra thal :

I have several questions.

What province is this please?

Did the parents have a marriage contract?

If the mother has passed away why does this matter now? Is this about the mother's estate?

Do you understand what a life interest is ?

Customer:

Ontario.

Customer:

Yes, they were married.

Customer:

Mother's name is XXXXX XXXXX the property as having a life interest.

Customer:

No, I do not understand what a life interest is.

Customer:

My deceased brothers name is XXXXX XXXXX the property also? and how we found out was that my other brother needed to borrow some money. A title seach was done on the property that we have allowed him to live in rent free, as long as he paid the taxes. It was found that my deceased mothers name and my deceased brothers name and the 3 living siblings names are XXXXX XXXXX the property title.

Customer:

We do not know where to go from here?

debra thal :

What happened when you father died in terms of the estate?

Was there a Will and was it probated?

Did you mother end up with half their assets?

Are you certain that the title says life interest?

Have any of you seen a lawyer yet?

debra thal :

Sorry, I realize that his wife may not have been your mother.

debra thal :

How long was he and his wife married for?

debra thal :

I am trying to get the facts straight and there is a potential family law issue that comes into what just looks like a straight estate matter.

debra thal :

I think it would make sense for you to start from the begining and use names. Is mother and wife the same person. You say she is still alive but also that she has died. So I am not able to figure out the basic facts.

Customer:

My mother and father are named Marcel and Eva. Their four children are Gerald, Judy, Murray and Marian.

Customer:

Marcel left a will as follows

Customer:

1. To convey to my wife Eva, All my wordly possessions including property and monies for her sole use, so long as she shall live, and upon her death to convey equally, sahre and share alike to our four children Jerry, Judy, Murray and Marion, all that remains of property and monies.

Customer:

2. in the event of my wife and I meeting death together, the same division to be mades as mentioned above to out four children.

Customer:

3. I nominae and appoint Eva , my wife as Executrix, or in the event of my wife and I meeting death together, my son Jerry and daughter Marion to be Executors.

debra thal :

When did your father die? When did your brother die? When did your mother die?

Whose name was on title when your father died? Whose name is XXXXX XXXXX now?

Customer:

Marcel passed away April 12 1977

Customer:

eva took his will to a lawyer and the title was registered as follows:\

Customer:

In consideration of the sum of 1.00 paid to me transfer a life interst to Eva, widow of the Village of Callander and the remainder to Gerald, Murray, Judy and Marian as Tenants in Commom each as to an undivided one-one-quarter interest.

Customer:

This is NOT the way it was supposed to be completed. Anyway

Customer:

All the siblings agree that the house is to remain in the family. Gerry gets very ill and on his death bed marries a woman (Alice) 10 days before he passes on Dec 13 1983. gerry does not have any biological children.

Customer:

In Gerry's will he appoints Noel to be sole Executor. Gerry's will reads as follows:

Customer:

1 & 2 & are the standard revoking, appointing and bequeathing. 4. I authorize my trustee to use his dicretion in the realization of my estate, with power to my Trustee to sell, call in and convert into money any part of my estate not consisting of money at suchtime or times in such manner and upon such terms, and either for cash or credit ,or for part cash and part credit, as my said trustee may in his uncontrolled discretion decide upon.

Customer:

Noel has indicated that Gerry expressed to him verbally that the homestead(Marcel and Eva's) house was to remain in the immediate family. Gerry's will is dated November 18th - 25 days before he passes away.

Customer:

Noel has not had Gerry's name removed from title on the homestead. Can Gerry's name be removed or does Alice have any claim to gerry's protion.

Customer:

Eva does not pass away until August 1, 1994. Does Gerry's passing before Eva negate any claim Alice may have.

debra thal :

This sounds like a law school exam question!

There were a number of mistakes that went on here. The main one was that your mother likely didn't get what she was entitled to. But, my guess is she didn't care because this was all going to the kids one way or another.

So, it's not likely anything that was done incorrectly now can be corrected.

If your brother's Will have his 1/4 interest in the home to his then spouse then it's hers.

A life interest only gave your mother a right to live in the home. It's not about ownership. This is where part of the error was made. She had a right to half of your father's assets and if the house was their main asset she could very likely have been entitled to half. But, she failed to make that claim and the house is really owned by the three of you and your brother's estate.

I am not sure what his wife was thinking or what was done. It may be that she is too late to make such a claim.

The only way you can really sort this out is to sit down with an experienced estate lawyer and go over the documents and the facts and also figure out exactly what happened with the wife when your brother died.

Do you need suggestions on finding a lawyer?

Customer:

Does the verbal conversation between Gerry and his executor have any legal weight pertaining to the homestead?

Customer:

Yes, could you suggest someone in the North bay area.

Customer:

This certainly is a nightmare that I wish I did not have to contend with.

Customer:

The homestead is in very poor shape. If we do have to buy Alice out is she entitled to todays market value or the market value at the time Gerry passed. Alice has not contributed anything to the upkeep of the property nor the taxes etc.

Customer:

Alice would first have to incur the cost to have her name transfer onto title first - right?

Customer:

Maybe if we approach Alice directly and ask her to sign off and we will incur all the legal fees.

Customer:

Is this a viable alternative?

debra thal :

I would not approach her until you speak to a lawyer.

She is entitled to fair market value today less what she should have contributed but did not.

She would have to share in the legal costs.

The verbal statement would not be considered.

I am in Toronto and don't know any lawyers in North Bay, unfortunately.

Customer:

Would you please explain what a life interest is.

Customer:

Does the fact that my brother passed away before my mother have any bering on the matter?

Customer:

Please ignore the life interest question I re-read and see you have already answered it.

Customer:

You did however mention that Alice may be to late to make a claim on the property? Is there a time limitation with respect to this matter?

debra thal :

A life interest means that your mother had the right to live in the house for her life. But, it doesn't give her any ownership interest.

The fact that your brother passed away first does not change anything because ownership is not related to a life interest.

There are time limits for all claims. It's hard for me to know whether she is out of time because I don't really know all the chronological details. It seems like this is a distinct possibility but there have been so many errors all along the way that you need a lawyer to try and sort out just exactly what went by review the choronology of events and all the documentation.

And, the lawyer should likely consider that your mother should have possibly had an ownership interest in the house because of the family law issues.

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