As the first members of their families to buy property, Peter and Angela Andrews could not have been more proud when they purchased their three-bedroom detached house in the North of Scotland as newlyweds in 1963.
It proved to be the perfect family home to bring up their daughter, Sally, who was born soon afterwards, and their son Graham, who arrived three years later. Sally and Graham enjoyed a happy childhood, and the family remained tightly knit when the siblings grew up and left home.
Angela died last year, aged 84, leaving Peter alone in the family home. She had appointed Sally and Graham as joint executors of her estate and left the house and remaining assets in their names. There was never any question in Sally’s mind that she and her brother would let their father live in the house, and would sell it only when he passed away.
But even though Graham, 53, and his father had always shared a particularly strong bond in the family, after his mother’s death he threw Peter, 86, out of his home of more than 60 years.
When probate was granted five months after their mother’s death, Sally received the first of several ‘nasty’ phone calls from Graham’s solicitors demanding that their father be evicted.
What followed led to a family feud that is unlikely to heal.
‘We had a great childhood,’ says Sally, 57, who lives just 20 minutes from the family home. ‘There was no bad parenting. Me and my brother never had a cross word to say about our parents. I don’t know what changed. He never gave the impression that the money was important to him. I’m still trying to get my head around it. My father was always good with my brother and his wife. It’s crazy.’
Even though Graham and his father had always shared a particularly strong bond in the family, after his mother’s death he threw Peter, 86, out of his home of more than 60 years (picture posed by models)
Unfortunately, because he was self-employed, Peter was not on the title deeds of the house, which was solely in Angela’s name, even though they bought it together. ‘[Mum] said something about it years ago, but I didn’t think much of it,’ says Sally.
‘She wanted the security of the house if anything went wrong with Dad’s work.’
However, as joint owner, Peter paid half the mortgage every month. He thought this provided him some protection, but this proved not to be the case.
What might have been smart financial planning by Angela decades ago left Peter vulnerable to the whims of his son, who was determined to get his share of the £270,000 house. Surprisingly, his mortgage contributions meant very little in the eyes of the law because he needed to have proved that he had added value to the house.
Siobhan McGuigan, a partner at the legal firm Anderson Strathern, says: ‘You’d have a very hard case proving financial contributions. He may have a claim if he was able to prove that he added value to the house, but it could cost a lot of money.’ Had Angela not left a will, Peter would have been left in a much better position and would have had an automatic right to inherit some or all of the home. That’s because inheritance rules in Scotland differ from those in other parts of the United Kingdom.
The law distinguishes between heritable property – land and buildings – and moveable property – any other assets.
If there is no will, a spouse or civil partner can claim ‘prior rights’ on everything, including a family home worth up to £473,000, and contents of the family property up to the value of £29,000. They can also claim a share of the moveable estate of up to £50,000 if there are children, and £89,000 if there are no children. However, if there is a will, prior rights are disregarded and the immediate family can claim ‘legal rights’ on the moveable estate, regardless of the will, which does not include property.
The lack of legal protection for Peter made Graham’s decision to choose money over family even more hurtful for Sally. ‘I know the boy I grew up with. How does he live with himself?’ she says.
Sally wanted to take it to court, but her solicitor advised that she’d likely lose and be thousands of pounds out of pocket. Sally then contacted the Scottish Parliament, but was told that her elderly parent had no safeguards.
Graham demanded the house be put on the market immediately, leaving Peter without a home or money to buy somewhere new. Thankfully, Sally’s son had moved out of her home to live with his partner just weeks before, meaning Peter could move in, but it wasn’t a permanent solution.
‘My dad’s a very independent man, he doesn’t want to live with me,’ says Sally. ‘I was going to get the funds together to buy a house for him, but it was so hard to find an appropriate one because of his mobility.’
Sally, who runs a small business, would have faced a hefty 6 per cent stamp duty charge on buying a home for her father, as it would be considered a second home, and there were complications with buying a house in Peter’s name.
At the 11th hour, the local authority, aware of Peter’s situation, found a one-bedroom pensioner’s flat not far from from Sally.
‘Someone must have been looking down on him. Everyone was so relieved after everything.’
All names have been changed
How to avoid losing your home in family battle over a legacy
Peter Andrews’ daughter Sally is not sure what she will do to help her own children, but her devastating experience highlights some difficulties with Scottish tax law.
Firstly, make sure that your name is on the title deeds if you jointly own your home.
You could also include a survivorship clause in your will, which would give your spouse or partner an automatic right to inherit the other person’s share of the property. If you would ultimately like to pass on your home to your children or other family members once your spouse or partner dies, make sure you outline this in your will.
Siobhan McGuigan, of law firm Anderson Strathern, says she has had cases where the property is in the sole name of one spouse because of financial difficulties. But a provision made in the will meant that the surviving spouse could still live there, even if it is in their children’s names. McGuigan says: ‘With an outright legacy to children and no provision for the [survivor], then it does pass to the children and any legal rights wouldn’t attach to the property, only the moveable estate.’
These distinctive features of Scottish law only apply if the deceased was domiciled – had legal residence – in Scotland. So if you have a second home in Scotland but are domiciled in England, English law will apply.