Q&As

If a husband and wife own a property as tenants in common 50:50, can one of the spouses leave a lifetime interest to someone else? Is the surviving spouse bound by the terms? If the surviving spouse is unhappy and cannot live with the new life tenant, what can they do about this? If after the death of the life tenant that share passes to other individuals (not the surviving spouse), what potential problems might there be and how could they be resolved?

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Published on LexisPSL on 17/06/2020

The following Wills & Probate Q&A provides comprehensive and up to date legal information covering:

  • If a husband and wife own a property as tenants in common 50:50, can one of the spouses leave a lifetime interest to someone else? Is the surviving spouse bound by the terms? If the surviving spouse is unhappy and cannot live with the new life tenant, what can they do about this? If after the death of the life tenant that share passes to other individuals (not the surviving spouse), what potential problems might there be and how could they be resolved?

In these circumstances each spouse has a 50% interest in the property, which is held as tenants in common meaning that each spouse’s interest in the property will pass upon their death according to their Will or otherwise the intestacy rules. Therefore each spouse is able to leave their interest in the property to whomever they choose and accordingly a life interest could be left to someone other than their spouse.

However, as indicated by the scenario in this Q&A, there is the potential in practice for this to be unworkable. The potential consequences of such a gift should be discussed carefully with the testator/testatrix

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