Can brother insist on payoff for giving up his right of residence?

Q I’m the eldest of four children. My father passed away recently and left the house to all four children, with the youngest sibling – who has always lived in the family home (that is, our parents’ home) – given exclusive rights of residence for his lifetime di lui. My mother passed away some time ago.

My other two siblings and I have asked our youngest sibling to waive his right of residence so that we can sell the home and split the sale proceeds equally. However, he insists he should be paid off to the tune of € 100,000 in return for him waiving his lifetime rights of residence. The value of the house is € 400,000.

Does he have a right to insist that he be paid off to the tune suggested in return for him giving up his right of residence? He said he will refuse to waive his right of residence if he doesn’t get this payoff. Is there any other solution in the event that he won’t waive this right? Mary, Co Kildare

TO The first point is to distinguish between an exclusive right of residence and a ‘regular’ right of residence.

An exclusive right of residence is akin to a life interest. To find the value of your sibling’s exclusive right of residence, you could look at the Capital Acquisitions Tax (CAT) Consolidation Act 2003 and specifically Schedule 1 of it.

If for example your youngest sibling is a male and aged 50, the appropriate age factor used to calculate the value of his life interest is 0.7287. So, the value of your brother’s life interest would be € 291,480 (that is € 400,000 multiplied by 0.7287).

If on the other hand, your sibling had a ‘regular’ right of residence, the Revenue Commissioners would allow a valuation of 10pc of the overall value of the property. So, the value of your sibling’s right of residence would be € 40,000.

Given that your sibling is named both as owner and right of residence holder, there could be conveyancing difficulties if retaining the house.

To move forward with a sale, you will need your sibling’s consent.

You could try to come to some form of family settlement or maybe try mediation to agree on a way forward.

Ability of sole carer to challenge mother’s let-down of a will

Q My mother has passed away after a long illness. I’m the youngest of two children. I live very near my mother and have been the only family member to have cared for her over the last five years – when she became so ill and frail that she needed almost full-time care. My father passed away a few years ago and I have one sister who lives in the UK.

My sister has not helped out with my mother’s care in any way – and has only visited her for a couple of days a year over the last five years. It has just come to my attention di lei that in her will di lei, my mother has left the family home (that is, my mother’s home di lei) entirely to my sister. My mother has only left me a small amount – about € 10,000 – of her savings di lei.

I feel very hurt by this given I have spent the last five years caring for her. I don’t believe that my other sister deserves to be left the family home in its entirety. Is there anything I can do to have the legacy split more fairly? A friend has told me that I could challenge the will – would I have grounds to do so and would it be an arduous process? Sean, Dublin

TO I think you possibly would have a claim in this instance.

There are a couple of possibilities but the strongest claim I think would be one based on Section 117 of the Succession Act 1965.

This Section provides that: “where, on application by or on behalf of a child of a testator, the court is of the opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means (whether by his will or otherwise), the court may order that such provision shall be made for the child out of the estate as the court thinks just “.

The important factors would include the extent to which past provision was made to you, whether your mother helped you financially in the past (noting there is a relatively small bequest to you under the will), your financial situation, your legitimate expectation, special circumstances , and your conduct – noting that you have provided care for your mother over the past five years.

Be aware that you have just six months from the date of the grant (probate) to bring proceedings should you challenge the will on this ground.

An alternative may be a claim based on estoppel – whereby you claim that your mother was estopped from leaving the house to your sister on the basis that she had promised same to you.

Or finally, perhaps there was some form of unwritten contract between you and your mother whereby you would be compensated for your work.

Sale of family home after signing up to Fair Deal

Q My elderly mother had a bad fall early last year and has been in a nursing home since. She signed up to the Fair Deal scheme before entering the home. Her only assets di lei are her own home di lei and her di lei State pension di lei. I’m my mother’s only child and I have enduring power of attorney (EPA). It is very unlikely my mother will ever be able to return to her home di lei and so I would like to sell the family home di lei.

Am I allowed to do so, what would be the implications of doing so and how do I go about this? Do I need to consult with the HSE and Revenue on the sale? Dorothy, Co Cork

TO Given that your mother has an enduring power of attorney, you would be able to register same if she is no longer capable of managing her affairs due to mental incapacity.

You say that your mother had a bad fall but bear in mind that physical incapacity will not allow for the registration of the enduring power of attorney.

If your mother has her full mental faculties, she could arrange for the sale of the property herself.

If not, and your mother is deemed ‘mentally incapable of managing her affairs’, you can sell the property – provided that the EPA allows you.

The procedure is that you would sell as attorney on behalf of the registered owner.

Under the Fair Deal scheme, there is a three-year cap around the extent to which the family home can be used to contribute towards the cost of care.

So no more than 22.5pc of the value of your mother’s home (or 7.5pc of the value of the home a year – up to a maximum of three years) can be used to pay for her care if she spends more than three years in a nursing home.

So if your mother went into the nursing home in January 2021, come January 2024, the value of the house will no longer be taken into account.

If the house is sold while your mother is in care, the three-year cap now also applies to the sale proceeds due to a recent change in the Fair Deal rules.

You will need to let the HSE know if the house is sold.

As regards the Revenue Commissioners, there will not be any Capital Gains Tax (CGT) to pay on the basis of principal private dwelling house exemption.

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