Can my mother’s husband borrow more than his share of their house? (Stock image)
My mum remarried a few years ago and her new husband sold his tiny house, moved into her house and put the money into extending her house.
We do not know what the arrangement is with regard to ownership now.
My mum said that she wants me and my sibling to inherit her house but there might nothing left as he is busy spending her small savings.
He is living beyond their means, spending more than the pension income they have, and nearly all her savings are gone.
It looks like she will die before him so we would not inherit until he died, which is fair enough.
We are worried though, that he will continue to live beyond his means by borrowing against the value of the house and these debts would then be claimed when he died.
It’s a difficult conversation to have with her as we can’t speak to her alone any more without her husband being ever present.
Also, she is very deferential to him (he is quite forceful) and she is starting to find things more confusing.
If they separately own a percentage of the house then can he borrow more than his share of the house?
If the house is now jointly owned then presumably he could persuade her to release equity before she dies or wait and then borrow against the whole value?
What could she do to protect her share of the house from being borrowed against or the house sold and the money spent?
I don’t want to sound selfish but we do need the money and she thinks she is leaving it to us. It would be several hundred thousand pounds between the two of us which is a life-changing sum for both me and my sibling.
Tanya Jefferies, of This is Money, replies: I have great sympathy for you and your sibling.
To be in a position where you can no longer speak to your own mother alone – about any topic, putting aside money – and watch her appear cowed and confused when you see her must be deeply disturbing.
I don’t want to be alarmist, but I would be beside myself with worry if I was effectively being prevented from ever having any private conversations with my mother.
You have written to us about the impact your mother’s current circumstances might be having on her finances, and your potential inheritance.
But it sounds to me like above all else, you want to find a way to help and protect your mother, should this be necessary.
While, of course, you and your sibling don’t want to see your inheritance frittered away, I suspect you have seized on these money issues as a justifiable and socially acceptable pretext to address – and maybe actively intervene in – a troubling situation.
That said, you have asked valid questions about ownership of your mother and her husband’s house, and whether he could raise loans against its value with or without her permission. A lawyer who is experienced in this area answers you on these points below.
But if I am right about your true concerns then these financial matters, while of course important, are not the most pressing issue here.
In my personal opinion, you should find a way to have a private talk with your mother, providing you think you can do so safely, not about her money or house or your inheritance, but to make kind enquiries about her wellbeing.
However, I am no expert. Therefore, someone who is qualified responds to you on this below, and she outlines excellent resources and phonelines for organisations which I urge you to consult before you take further steps.
Nicola Plant: Assuming your mother has mental capacity, what she does with the house and her savings is her decision, even though she may be acting under influence
Nicola Plant, head of private client at Thomson Snell & Passmore, replies: This is a very difficult situation for you, but unfortunately there may be little you can do legally to protect your mother, or your potential inheritance, if she is unable or unwilling to listen to advice.
Unless your mother and her new husband entered into a prenuptial agreement before they married, the default position if they divorced or separated would be an equal split of assets.
If your mother and her husband now own the house together, whether in separate shares or otherwise, a lender is likely to require a joint mortgage.
This is so the lender’s interests are protected if one co-owner defaults on repayments. If your mother agrees to it, her husband could borrow more than his share of the equity in the house.
It would be possible for your mother and her husband to enter into a separate deed, behind the legal title, whereby her husband agrees to indemnify and repay your mother if the mortgage unfairly reduces her share of the equity.
Unfortunately, in reality such agreements aren’t worth very much if the money’s already been spent and there’s nothing to claw back from her husband’s estate.
The best way for your mother to protect her share of the equity in the house is to refuse to agree to mortgage the property.
As your mother is married, she is expected to make reasonable financial provision for her husband on her death.
If she fails to do so, the Inheritance (Provision for Family and Dependants) Act 1975 enables her husband to make a claim against her estate.
Such claims can be very costly and are best avoided.
If your mother wants to provide for her husband, avoid claims and protect the underlying capital for you and your sibling she must take advice about her will.
Ideally your mother’s will would appoint independent executors and trustees, who can balance the competing interests of her husband and children.
STEVE WEBB ANSWERS YOUR PENSION QUESTIONS
Your mother’s will should also include what’s called a ‘life interest’ trust, which will enable her husband to continue living in the property, but prevent him from selling or mortgaging it without the trustees’ consent.
This type of trust arrangement is designed to preserve the capital for your mother’s ultimate beneficiaries (i.e. her children/grandchildren) until after her husband’s death or possibly earlier remarriage.
I appreciate your question stems from a desire to protect your mother.
However, assuming she has mental capacity, what she does with the house and her savings is her decision, even though she may be acting under influence.
If your mother is a victim of domestic abuse, in the form of coercive or controlling behaviour, that’s a criminal matter.
Otherwise, as a consenting adult, the law won’t protect your mother from making poor personal or financial decisions.
Christina Govier, head of support to financial services at the charity Surviving Economic Abuse, replies: One in six women in the UK has experienced economic abuse by a current or former partner.
While over a third didn’t tell anyone at the time, those who did were most likely to confide in family and friends.
If you have concerns about your mother’s husband’s behaviour, you can find more information and resources to support someone experiencing economic abuse here.
An abuser may attempt to take advantage of their partner’s economic resources, for example refusing to contribute to household costs, taking wages or savings or running up debt in their name.
The Financial Support Line for Victims of Domestic Abuse, which is run in partnership by Surviving Economic Abuse and Money Advice Plus, can support with coerced debt – you can call on 0808 196 8845 (9am–5pm, Monday to Thursday).
If you are worried someone you know may be in an emergency situation, phone the police in the first instance.
You can also contact the National Domestic Violence Helpline for support and guidance on 0808 2000 247.
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