Q. My husband recently passed away, leaving behind me and an adult son of 35. My son lives with his fiancée in his own house. We are not on the best of terms. My husband did not make a will and the only asset in my husband’s estate is my family home. My son claims that he is now entitled to a share in the family home. Is this the case? Will I have to sell my family home to pay off any entitlement he may have? I do not have any savings and will not qualify for a loan. Is there anything I can do?
Dear Reader,
Your question highlights the serious difficulty that can arise where a husband or wife dies without having made a will.
If the title deeds to the family home were in the joint names of yourself and your husband, you automatically acquire full ownership of the property under the legal doctrine of survivorship.
While it is now common practice for the deeds to the family home to beheld in joint names of husband and wife, this was not the position 20/30 years ago and it is therefore likely the deeds are in your late husband’s name. Because he did not make a will, intestacy rules state that your entitlement is to two thirds of your husband’s estate with the remaining one third going to your son.
Your son can therefore argue that he is entitled to the one third share in the family home, together with one third of whatever cash, shares, and other assets your husband may have owned. The law does permit you to claim 100 per cent ownership of the family home, but this will require you to make a cash payment to your son and in effect ‘buy out’ his share of the property.
In certain circumstances, as appears to be the position in your case, where one does not have sufficient cash to buy out a child’s share, one is entitled to make an application to the court to secure full ownership of the family home without making a cash payment, if you can satisfy the court that to make a payment would result in hardship to you.
It is open to your son to waive his entitlement to his share in your husband’s estate. It looks like you are in a position to apply to the court for full ownership of the property (which you may get).
If the Court application is unsuccessful and if no alternative arrangement can be agreed with your son, you may have to sell the property to pay him his share. This is a most unfortunate situation and certainly again highlights serious difficulties that do arise when people do not make a will.
