I am worried about my wife being ripped off by her sibling with regard to her inheritance.
My brother-in-law still lives in the family home with his wife and sons and doesn’t work.
The general discussion has been that he will move out after the house is inherited in the future and it will be sold.
He will then purchase a home with his inheritance including his share of the property sale.
Inheritance worry: Can we charge my brother-in-law rent if he refuses to move out of family home (Stock image)
Everything sounds okay to me, but I do not trust that my brother-in-law will do the right thing. I suspect that he will refuse to move out of the house when the time comes for him to do so.
From what I can make out from searching around, it will be easy for him to manipulate the law and refuse, to block the sale of the house.
Is there anything that can be done to protect against this situation happening? Would he be legally obliged to pay the going rate for rent on my wife’s half of the house if he did refuse to vacate the house?
If so, can he refuse to on the basis that he can’t afford the 50 per cent of the going rent?
Charlotte Shaughnessy, senior associate at Mills & Reeve, replies: I assume that your parents-in-law are leaving the family home to each other on the first death and then to your wife and her brother in equal shares after they have both died.
If that’s the case, then it will be the executors of the will of the second parent-in-law to die who will be responsible for sorting things out.
Until the estate is wound up by the executors, the beneficiaries have no interest in the individual assets of the estate, only a right to have the estate properly dealt with.
So, as a beneficiary of the estate, your brother-in-law won’t have an actual right to occupy the property at this stage. But if he doesn’t move out, what can be done?
Could you evict your brother-in-law?
Charlotte Shaughnessy: ‘If the property is not sold, then your brother-in-law should pay rent’
Even without any right of occupation, he might still be able to make life difficult, particularly if he was one of the executors, as he could potentially use his position to block a sale.
And in any event, who would buy the house if he was still living there?
The other executors and possibly your wife could apply to court to remove him as executor and could seek his eviction from the house as part of those proceedings.
They would have a fairly strong case, as his continuing occupation of the property would be in breach of his duty as executor.
Even if your brother-in-law is not an executor, he may be able to block a sale if he can show that he has an interest in the property in his own right (not just as a beneficiary of the estate).
This is a complicated area but could, for example, include someone who acquires an interest in a property by paying for improvements such as a new kitchen.
In some cases (for example, if they are paying rent) the occupier of a property can also have an informal tenancy.
This does not appear to be the case here, but if your brother-in-law does have any sort of tenancy, it will need to be terminated before he can be asked to move.
The executors could finish winding up the estate, even if your brother-in-law is still refusing to move out.
If he is still in occupation once the administration of the estate is finalised, the situation changes.
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At that point, your wife (as the co-owner of the property) may be able to apply to court for an order for sale.
The court does however have a wide discretion in deciding what order to make and must consider various factors.
There is no guarantee that the court would make an immediate order for sale.
Could you ask your brother-in-law to pay rent?
If the property is not sold, then your brother-in-law should pay rent for his continued occupation of your wife’s share of the property throughout the time he remains there.
The rent would however be discounted to reflect the fact that the property is co-owned.
If he refused to pay, then your wife could potentially apply to court for a further order.
Is there any action your parents-in-law can take now?
I expect that, as far as possible, your parents-in-law also want to prevent any disputes after their deaths.
With this in mind, they should review their wills to ensure the following:
1) Independent executors are appointed, who are not beneficiaries, and could be other family members, trusted friends, or professionals who would charge a fee for their services; and
2) The executors are relieved of their duty to consult with beneficiaries before taking decisions in relation to the property.
They may also wish to consider using ‘trust based’ wills, in which they leave the property to independent trustees to sort out, rather than leaving it outright to your wife and brother-in-law.
This would give the trustees more control and could make it more difficult for your brother-in-law to occupy the property without agreement.
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