Q: My father died nine years ago. In his Will he left his half of the house he bought with my step-mother to me. At the time I agreed she could continue living in the property but now she has announced that she is putting it up for sale and moving south. Surely, if my father left half the house to me, my step-mother cannot sell it and use all the proceeds to buy another home for herself?
A: Firstly you need to establish how your father and step-mother owned the property, i.e. as ‘joint tenants’ or as ‘tenants in common’. A joint tenancy means that on the death of one spouse the surviving spouse automatically inherits the deceased spouse’s interest in the property, irrespective of what may be stated in the deceased spouse’s Will. If a property is owned by tenants in common then each co-owner can leave their interest in it to whomever they like and the surviving spouse has no automatic right to that interest, including no right to continue living in the property.
If it is the case that your father and step-mother owned the property as tenants in common and your step-mother decides to sell the house, you would be entitled to a 50 per-cent share of the sale proceeds if in his Will your father left his half share interest in the property to you. You should however be aware that you – and your step-mother – may be liable to pay Capital Gains Tax (CGT) on your share of the sale proceeds. The amount of CGT payable would be based on the difference between the amount you receive and the value of your half share at the time of your father’s death. Where property and second marriages are involved it is essential that couples seek the advice of an experienced solicitor when making their Will.