Criminal activity by occupants of trust property

We act as trustees of a small property, which the deceased instructed was to be held in trust until her youngest child is 25. She is currently 14 and lives with her father in his property. The house is occupied by the deceased’s two adult sons who have a history of drug related problems, and one of them has been in prison. Insuring the property proved difficult as neither son would disclose his criminal history therefore expensive, specialist insurers have had to be used.

We have recently learned “on the grapevine” that the house was raided last year and that the police made major finds, but of what we do not know. We assume it was drugs.

The deceased anticipated this and there is a clause in her Will which prohibited any of her children who engaged in criminal activity from living in the house. The police will not tell us anything without the consent of the sons, or a “binding legal reason”. We believe the property insurance may lapse if there has been criminal activity, but if the police will not tell us we cannot be sure.

We would like to evict the sons and bring the property up to a standard where we can rent it and obtain a good income for the trust, which will benefit all of the beneficiaries.

Does anyone have experience of this, or even a few pointers? Many thanks.

Elainne Lawrie
PDA Law Solicitors Limited

You don’t say who are the beneficiaries of the will trust, and in particular whether the children’s father is entitled to occupy under an express right to occupy. But if the beneficiaries are the
three children then secs 12 and particularly 13 TOLATA are relevant. The trustees can exclude the offending beneficiaries from occupation and take proceedings for eviction.

Your real problem seems to be one of evidence. I assume that the father of the youngest child can’t or won’t cooperate. Would he maintain that position if he knew his own occupation was at risk?
He is likely to have at least condoned the illegal activity. Have you been able to make contact with any neighbours? Even if they can’t speak as to drug use they may have complaints about noise or other forms of disorder. A good local enquiry agent may be
able to find out useful information.

Once proceedings have started I would expect that the police would show more cooperation once served with a witness summons, but you probably don’t yet have enough evidence to make a sustainable
decision as trustees and issuing court action speculatively is definitely not encouraged.

Finally, have you considered informing the insurers of your suspicions? Cards on the table is recommended in dealing with insurers and their reaction may add weight to the trustees position.

An interesting problem arises if the beneficiaries are the three children. Crowe V Appleby indicates that in the case of a house vesting in all beneficiaries is delayed until all are entitled to
a vested interest i.e. when the youngest child becomes 25. Does that apply if some of the beneficiaries have by their misconduct precipitated the sale and therefore the vesting of their contingent interests? And, depending what they have been doing, there
may be police confiscation applications against their shares of the proceeds of sale.

Tim Gibbons