A will question

Up to 2009, it was possible to transfer or bequeath a "life estate" in land. So Husband could leave the house to Wife for her life, with remainder over to Sons jointly.

In that scenario, Wife would only have a life estate in the house, so that's all she could sell or give away. She could sell or transfer her interest to, say, Pa88y, but all Pa88y would get would be ownership of the house until Wife died, at which point the life estate based on Wife's life would come to an end, and Sons would become joint owners of the house. Obviously, Pa88y wouldn't be interested in paying much or anything for such a limited ownership of the House, so Wife's interest was not in practice saleable. Wife and Sons together could sell the house outright, if they were all in agreement to do that.

The law was changed in 2009 and you can no longer create a life estate in property in Ireland. What Husband can now do is make a Will leaving the house to Sons jointly, but subject to a right of residence for Wife for her life. Wife doesn't own the house but she has the right to live in it, rent-free, for as long as she lives. She can't sell or transfer her right of residence to anyone. Sons can't in practice sell the house subject to Wife's right to live in it (who would pay money for that?) so, again, the practical way to sell the house is for Wife and Sons to agree - Wife surrenders her right of residence so that the house can be sold, in return for which she gets a cut of the sale proceeds.

When was the will made?

And when did the father die?

No she only has a life interest in the house and cannot sell it. If the house is in joint names then that part of the Will will fail because she will get it automatically get it on his death.

It's perfectly acceptable. But what will actually happen is that a statutory trust will be created on your death, with the house held by the executor on trust to provide the wife the use of the house for her life, and then to transfer it to the two sons.

Since that's what's going to happen, a competent drafter will draft the will to say that's what is to happen, so as to avoid confusing or disappointing the beneficiaries. But of course there are plenty of wills out there drafted before 2009 and attempting to create a life estate, and when those testators day what will actually happen is a statutory trust in favour of the life tenant.

Land And Conveyancing Law Reform Act 2009 s. 11 is the provision which prevents the creation of a life estate in land. Subsection (6) has the effect that an attempt to create a life estate will result in the creation of an equitable life interest only. S. 18 of the Act operates to create a trust of the land, and s. 19 identifies the trustee who, when you work through it, has the effect in this scenario that the trustee will be the executor.

At least, that's how I read it. Happy to defer to anybody with more experience and/or expertise.

As for the wife selling her interest, as pointed out earlier it was in practice unsaleable anyway - who would buy it? Now that it's a purely equitable interest she can still in theory sell it - there is nothing to stop someone buying a purely equitable interest in land - but, as before, it's very unlikely that she could find anyone willing to buy it. (Unless they were also buying the remainder from the remainderman, of course.)

A will wouldn't be word with a "statutory trust"; the whole point about the statutory trust is that it's created by the statute, not by any instrument. But if client came into a solicitor and said "I want to make a will leaving my house to my wife for her life, with remainder over to our children in equal shares", I'd explain why what he wants can no longer be done, and - subject to instructions - draw up a will leaving the house upon trust for the wife for her life and thereafter for the children in equal shares absolutely. And I'd point out the continuing role for (and obligations of) the trustee in this scenario and I'd worry about my professional indemnity insurance if I let the client walk out not understanding this.

Not really relevant in the present context. It will never operate to give her a life interest in a particular property in the estate.

If whatever is left to her in the will is less valuable than her legal right, she can refuse to accept the bequest and instead assert her legal right. But this will be true regardless of what is left to her in the will, and regardless of whether it is, or purports to be, a life interest in property, or something else.

I don't get this.. Why would she want or need a life interest in the family home when she's already a co-owner? Or am I missing something?

In the OP's hypothetical scenario, the father died, he bequeathed his share of the family home to his wife and he presumably expressed his wish somewhere in his will for the family home to ultimately be passed down to both sons upon the death of their mother. If that were to be the case, surely she would be able to dispose of the property however she saw fit, despite her late husband's wishes?

Thanks for the well explained response, your posts on here are great! I see where the confusion lies, I mistakenly assumed that the couple were joint-owners of the property, rather than the property being in the sole name of the husband, which seems to be the case here.

Hi Pa88y,Peregrinus,

Great question by PA88Y and thanks to all the contributors.

I am in a similar situation , in 2000 my father passed away , having been sick for the previous 4 years leaving his 50% share in his company to my mother for life ( who held the other 50 % share) and then to his two daughters equally in his will pre 2009. My Mother passed away 4 months ago, 2024.

So for my mother's share we qualify for business relief as the company has been actively trading for the last 21 years but there is a question over the business relief on my fathers share? My Father was sick so the company was not trading for the required time between 1996 and 2003 .

I am fully convince we meet the requirements for business relief on the fathers share as on reading chapter 8 of the revenue manual on valuation dates. My mother had her own 50% share and my father's 50% for life since 2000 and the accountant registered my mother as the director with CRO as 100 %share holder in 2001 and daughters directors as 0 % shareholders.

It says business relief is determined on valuation date and the valuation day is the day we inherited when the lifetime holder passes. Also the company had been trading for 6 years previously. So i take it, our share from our father is valued on mother's passing qualifying the daughters for business relief.

Am I correct in how i am interpreting Business relief?

We are waiting on the tax advisor reply !

GoodNight.