Legal Situation re Sons House

[ZOEDAILEY]

Our daughter in law died 6 years ago. She left her half of the house to our grandchildren and my son lives there. Both their shares amount to 25% each and my son has 50%.

He has now decided he is getting married to a lady with 2 children who are 10 and 12.

In the event of a divorce is there any danger of the grandchildren loosing any of their share of the house.

If they do divorce would my grandchildren be able to get the wife and her children out of the house straight away so they can get their 50% share.

If my son predeceases his new wife would my grandchildren be able to get the new wife and children out of the house straight away so they can get their inheritance.


Zoe

[shanilisa]

I would think that the 50% share of the house which is in your son's name might be claimed in part by the new wife should your son die. The logical thing for your son to do here would be to draw up an antenuptial contract in which the house would not a joint or accrued item of the marriage so the new wife would have no claim to any part of the house should they divorce or if your son should die. His Will should state same - unless he wants her to inherit his 50% share of the house on his death. Would he not want it to go to his children though?

[Barmaid]

The way I see it is this: Your daughter in law's share of the house is left absolutely to the children (there may have been a life interest though - you need to check this with her will). As such, this has never been owned by your son and thus is outside of his estate for divorce purposes. He only owns 1/2 of the house.

Say they divorced or your son predeceased - it is impossible to say whether the court would enforce an order for sale to get the new wife and children out of the house. You would need to make an application under ToLATA 1996 (Trusts of Land and Appointment of Trustees Act) for an order for sale. THe rights of infant beneficiaries will always be accorded preference by the court. However, this also has to be balanced with the "majority rule". I cannot see that your son's new wife and children can bring themselves under the "original purposes of the trust", so I see you being able to enforce a sale slightly more likely. However, there are many factors to be taken into account at the time.