Wife died leaving husband with a life interest in her share of the property- remainder to their two adult children. (Property held as tenants in common). Husband is now moving into care.
My query is as follows:
The wording of the life interest trust sets out a right of occupation for life, but is silent on how any income generated from the deceased’s share would be used, and whether this would be payable to the life tenant during his lifetime?
I am assuming that because the Will is silent on this point, the life tenant retains a right to the income for life? (as there is no wording to the contrary).
I would greatly appreciate peoples thoughts on this.
Without seeing the clause, it could be interpreted as a right to reside for life rather than a life tenancy? Kessler says, “the income clause of an IP trust must give the life tenant the right to trust income as it arises.” His form is “The Trustees shall pay the income of the Trust Fund to X during his or her life.” Without something similar I think it is a right to occupy.
I agree with Iain that the precise terms of the will need to be considered, but if Henry is accurate then I cannot see any suggestion of a life interest.
As Henry refers to a tenancy in common, perhaps he should also consider the trust of land, in particular whether any “purpose” is expressed or inferred.
Right to occupy = no right to income; full life interest = yes to income. Depends on wording of clause. Maybe you could set out the wording of the clause so we can plainly see what type of trust with which you are dealing…