LEGAL ADVICE: I am the co-owner of a farm with my husband who is an alcoholic. I have terminal cancer and wish to safeguard my share of the farm for my three children aged 13, 10, and 8.? What are my options?
This is indeed a very difficult and sensitive situation for you and your family. What your options are depend on a number of matters.
Firstly whether or not you and your husband can agree on the best way forward in the interest of the family as a whole. If that can be done matters can be addressed in a fairly straightforward manner.
The position becomes much more difficult if your husband does not agree that your share of the farm should be safeguarded for your children and not him.
Secondly what type of co-owner are you? There are two main types of co-owners recognised by the law, ‘joint tenants’ and ‘tenants in common’.
The principle difference between the two types is what is called the ‘right of survivorship’ .In the case of a joint tenancy when co-owner dies his or her interest passes to the other co-owner automatically and not by his or her will or by the intestacy rules.
In the case of a tenancy in common each co-owner has a defined share in the property which passes on death by his or her will or on the basis of the intestacy rules.
So if you are a joint tenant with your husband, as is the usual scenario for married couples, on your death your joint share in the farm will pass automatically to your husband.
However if your husband is agreeable it is possible to convert your joint tenancy interest into a tenancy in common interest.
Prior to legislation enacted in 2009, a joint tenant could convert his or her interest without the consent of the other co-owner(s).
However that can now only be done with the prior consent in writing of the other joint tenant or by way of an order of the court.
If it proves necessary to go to court to dispense with the consent of your husband the court will look to see whether or not his consent is being unreasonably withheld and will consider all the circumstances before making a decision.
I note that none of your children have reached the age of majority (18) . If you manage to convert your share in the farm to a tenancy in common you can either leave the property to them in your will or transfer the property to them now.
In either event, you will need to give consideration as to how to protect their interest in the farm while they are minors. That will require the appointment of trustees who will hold the legal interest in your share in the farm on trust for your children and manage affairs for them until they all become of full age. It is usual to appoint two trustees.
A trustee can be a family member or a trusted friend or a professional person such as a solicitor or an accountant. A professional trustee is allowed to charge for their work and their charges will be deducted from the proceeds of your estate.
The trustee’s job involves a fair amount of work and responsibility. A person cannot be forced to take on the role of a trustee. For this reason it is a good idea before appointing a trustee to check whether the trustee of your choice would be willing and able to take on the role.
You clearly need to go to your solicitor for advices. Hopefully you and your husband will come to an agreement which is in the best interest of the family as a whole in what are the most difficult circumstances for you all.
By John Deeney
Mr Deeney is a barrister and former Deputy Registrar of Titles in the Property Registration Authority. He now provides Land Registration Consultancy Services and can be contacted by email deen[email protected].