Does the daughter have any grounds to have second husband sign over the house while he is alive and residing in home and have him removed??
Wife in 2nd Marriage situation with 25 years together. Wife Died and second Husband was on title as registered owner of home, joint with the right of survivorship at time of death. Originally the property was wife's home with previous husband, but upon divorce wife received title to the house in the settlement. New husband helped her pay it off mortgage. In wife's will she said that after death of second husband, house should go to daughter. Now daughter is trying to take house from her step father.
Asked 4 months ago in Mallorytown, Ontario
Categories: Real Estate Wills, Estates, Trusts Family Law
The facts are not entirely clear, but if the wife/mother transferred the title from her name alone into joint tenancy with her second husband (not a tenancy in common joint with spouse), the daughter is likely out of luck especially if he paid off the mortgage. There is a deemed transfer on the date before death in the case of the joint tenancy and the house is presumed to have passed to the joint tenant who survives by operation of law. The court of Appeal in Ontario has ruled on this question. There may be a claim to the home equity as against the 2nd husband as a dependent child or on the basis there was a prior agreement based upon terms of the will and prior parental ownership, especially if there is some agreement order, will or other document available. This is the reverse of where parents register a home in joint tenancy to one child expecting to avoid probate fees and relying on a child to use the equity to pay other family members if they predecease them. If the parent dies the surviving child absent some document in writing, will not usually have to share with anyone as the transfer takes place by operation of law. The whole intention of the joint ownership is defeated because of poor legal advice or a failure of trust. There are also lots of issues with subsequent spouses, common law relationships, and incorrect assumptions about what is or is not a matrimonial home, liens, loans, mortgage financings and required spousal consents and/or entitlements to registered and unregistered spouses or the rights of children of prior marriages. See a lawyer and explore marriage contracts, pre-nuptial agreements or cohabitation agreements or trust arrangements if you have interests requiring protection. Hamoody Hassan, Senior Counsel, www.hassanlaw.com
Posted 4 months ago
This is general advice, not based upon any particular case, fact or law: seek individual legal advice. I can only answer generally and cannot offer an opinion about your case. If you want an objective opinion or to interview with a lawyer, check out many lawyers on the internet like our firm who offer free consultations on contingency files. You can also phone the Law Society Lawyer Referral Service directly at 1-855-947-5255 or 416-947-5255 (within the GTA), Monday - Friday, between 9 am - 5 pm. They will provide 3 names of lawyers who handle cases like yours. Good Luck! Hamoody Hassan, Senior Counsel, http://www.hassanlaw.com
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