Terms Of Will

You want to leave someone something that they can't use! I can't even see how it'll be enforced as once the probate is done who can enforce the clause?

Just split it 4 ways and let them sell it or 1 buy the other 3 out.

"what from a legal perspective counts as living somewhere"

• The best people at threading this line are those who have been granted accommodation and / or benefits on the basis they are living alone, but are not really living alone. They'll tell you the main thing is to ensure no post arrives addressed to the "visitor", and that no government agency has the visitors postal address as that residence, and that the visitor has another postal address. Lots of people stay over with boyfriends / girlfriends etc 4/5/6 even 7 nights a week.

Eh.. your friend's sister might just be carrying most of the work towards care of an aging parent??

You still haven't told us how it's going to be enforced? Who will be able to start the proceeding if the person move someone in? Who'll pay the court costs to get them evicted? Considering it takes 2 years to get a non paying tenant out I can't see it being quick or cheap to get someone out of a property left to them in a will.

If I was left a property with that stipulation met someone who I wanted to move in and had a family who where willing to start a court case over it. The property might accidentally get razed to the ground if I lost.

There's a significant legal issue here, though, which is that the condition terminating the right of residence if the grantee "moves their partner in" could be void for uncertainty, if there's no reasonable consensus understanding of what constitutes "moving their partner in".

The OP says that the question is a theoretical one. I think the only realistic response is to say that it won't be possible to offer even a theoretical answer without seeing exactly, in full, without editing, the provisions of the will which (a) bequeath the property to whoever it is bequeathed to, (b) grant the right of residence to one of the children, and (c) subject the right of residence to the condition about not moving a partner in. It would also help to have some background on why the testator might grant a right of residence to just one child, and might attach the condition to it - the testator's intentions might be more easily ascertained if we knew the testator's motives.

Tl;dr: we need to know more about what's going on here.

The wording matters. If it's a standard clause in Irish wills you should be able to quote precedent wording without difficulty.

I note that you have already changed the wording you are asking about. In the OP the will provides for the right of residence to terminate if the grantee "moves their partner in", but now you say what matters is whether a third party is "living somewhere". There's a difference between moving in somewhere and living somewhere, and obviously it matters hugely whether the condition refers to a "partner" of the grantee, or just a third party, who could be a friend or a tenant or a licensee. So you're changing the wording in ways that obviously matter, even while telling us that the wording doesn't matter.

It really does matter. We don't need to see the full unedited will, but we do need to see the full unedited wording whose meaning, interpretation and application you are asking about.

I see two issues here. First, does the will stipulate what is to happen if X brings their spouse, partner or any other person to reside with them on the premises? Does the right of residence then lapse so that X can be evicted for breaching the condition? Or is it merely the case that the owner of the property can evict the spouse, partner or other person? The will should specify this and, if it doesn't, if X does does bring someone to live with them and the owner of the property argues that the right of residence has terminated the matter could end up in court.

The second is the issue you've already identified; what does this mean? The will talks about a "spouse, partner or other person"; you could read that in two ways. First, "spouse" and "partner" are there to give you a flavour of the kind of person they mean. The will could just have said "any person", which would mean anyone at all. But "spouse, partner or any other person" suggests another person who is comparable to, or somewhat like, a spouse or partner - i.e. someone with whom there is a romantic or conjugal relationship, or at least a personal relationship. On this view, the point of mentioning spouses and partners is to give you a guide to the kind of person that X is not to bring in. If you read the phrase that way, then X could e.g. rent out a room to a stranger in order to get some money, and that would not be a breach of the condition.

And it may be significant that ban is not on X bringing somebody "to reside in the premises", but "to reside with them in the premises". This tends to support a narrow reading; the condition doesn't forbid two (or more) people being accommodated in the property, but two (or more) people living a shared life there. So I'd say, yeah, if X wants to let out rooms to people he is is not otherwise in a relationship with, the condition does not forbid that.

What about people with whom X is in a relationship? The condition does not prevent X from having guests to stay, even for prolonged periods; just from "bringing [them] to reside with him". I think residing somewhere involves more than just staying there, even staying there frequently; it involves the place becoming your settled or usual home. This isn't a simple matter of how many nights a week someone stays there; it also involves looking at other questions like; does this person have another home? How much time do they spend there? Where is most of their stuff? Does the person accept any responsibility in relation to the property - e.g. do they contribute to outgoings, do work or maintenance on the house, spend any money on it? There are no hard and fast metrics here; you have to look at the whole picture and take a holistic view of where this person "resides". That means the application of the clause may be somewhat uncertain in practice; while there may be many cases in which it would be absolutely clear that a person was or was not residing with X at the property, there may be cases where this is less clear, and more debateable.

If you're not happy about that, don't put such a clause in your will; put in a clause with a concrete and measurable test (e.g. X's right of residence is to terminate if anyone, other than X or any of the owners, spends more than 30 nights in the property in any calendar year).

Look, I'll be honest; I don't think the clause is terribly well-drafted to achieve the stated objective. But it's an objective that was never going to be easy to achieve.

What the testator wants is for the family to be able to turn a partner out before they acquire any claim on the property. But that requires fairly early intervention; pretty much as soon as the lovebirds shack up the wicked in-laws are heading off to court, looking to evict the partner, or terminate the right of residence and evict both of the couple. The sympathies of the court will not be with you; the lovebirds are still very much in love, and you're trying to separate them? Or make them homeless? It's not a good vibe, is it? And, as a matter of public policy, the courts do not look with favour on provisions in wills, contracts, etc, which seek to discourage people from marrying, or to put impediments in their way.

If the house had been left to X outright, there'd obviously be a risk that (a) X might marry, and (b) the marriage might break up, and (c) X's spouse might have a claim on the house, with the result that (d) expectations that the house would remain in the family and eventually come to other family members might be disappointed. And if the testator tried to forestall that the answer would be: suck it up. What happens to this property will be in response to significant events that happen long after you're dead; there's a limit to the amount of control you can exercise from beyond the grave; this is well past that limit.

OK. Here I think the testator has done as much as he can by giving X only a life interest. Realistically, you can't stop X marrying, and you can't stop him cohabiting with his spouse, and I think the courts will regard a clause designed to penalise him by terminating his right of residence if those events happen as highly undesirable, and possibly void as being contrary to public policy.

You're on stronger grounds in arguing, when the marriage breaks down, that it would be unfair to X's family to give his spouse a claim an interest in the property, not out of X's assets, but out of the assets of other family members. Giving the spouse a right to occupy the house for longer than she would have occupied it had the marriage not broken down is something to which X's family members could reasonably object. That's not to say that the court wouldn't do it, but I think the court would be much more sympathetic to that argument.

I'm open to correction here, but I think the position is this:

In general, on marriage breakdown, the court has wide powers to make property adjustment orders which transfer property from one spouse to the other. But it has to be property to which the first spouse is entitled. So if X only has a life interest in Blackacre the most the court can transfer to Y is that life interest (and it's hard to see how that would make for a sensible marriage breakdown financial settlement).

But if the property concerned is the family home, the court has wider powers, which are not limited by the fact that X only has a life interest in the family home. The court could give Y an exclusive right to occupy the family home for Y's life, rather than for X's life, or for any other period the court may specify. Or it could direct the sale of the family home and the division of the proceeds. And these orders, obviously, could affect the interests of the other owners of the family home.

Whether courts do often make orders which have the effect of "expanding" one spouse's life interest in this way, at the expense of the other owners of the property, I can't say. And whether they would do so in this particular case, obviously nobody can say. I think the possibility is there. But I also think that a court would at least be sensitive to the interests of the other family members, and would listen sympathetically to an argument that they should not be financially prejudiced by X's marriage breakdown. Or, at any rate, more sympathetically than it would listen to a claim seeking to evict X and Y in case their marriage should ever break down at some point in the future.