I am dealing with an estate which contains a right to occupy for the surviving spouse of the testator with a discretionary trust in remainder. At the date of death, the surviving spouse did not reside in the property, she also lacks capacity & is currently in care. Therefore she is not able to take up her occupation. Relevant wording as follows:
'I give my house known as xxxxxxxxxxx to my Trustees on trust on the following terms:
My trustees shall permit my wife xxxx to live in the house free of charge so long as she wishes
When the occupant has ceased to live in the house my trustees shall hold it as part of my discretionary trust at clause xxxxxxx’
I am keen to secure the RNRB however if the right to occupy is deemed to be constituted & an interest in possession subsists then it is my view that we cannot use s.144 to appoint out of the discretionary trust to secure the relief.
Do you think that the mere transfer of the asset to the trustees creates the interest in possession or is it the physical occupation of the property that triggers the interest in possession?
Clearly my preference is that if she is not in occupation or able to take up occupation then no interest in possession subsists and we can unravel the clause to secure the RNRB.
What do you all think?