Life interest trust/will/beneficiaries

I would appreciate help with a will please.

Mrs A died in 1991 leaving a life interest in her property for any of her unmarried sons who were living there - A, K, B & R. Subject to that, the remaindermen are the residuary beneficiaries who are the 4 sons. The residue clause states that if any of them have died before Mrs A, their share passes to her children. Only A & R were unmarried and living in the property.

A & K have both died leaving just R living in the property. B has survived but has his own property and is married. R is considering leaving the property so that it can be sold. The issue is now over the sale proceeds.

K died in 2010 so I believe his share will pass as part of his estate - details of which I have yet to establish.

A died in 2019 leaving a will. For some reason his will leaves a life interest in the property to R, remainderman is B and the residuary beneficiaries are various nieces and nephews. I think the clause in his will regarding the property is a misnomer as I don’t think it wasn’t his to leave in a will. I can only assume he was confused when giving will instructions and told the will writer that he had a 1/4 share in his mum’s property.

The query is over the division of the sale proceeds of Mrs A’s property. As I see it, this is as follows:-

1/4 to R
1/4 to B
1/4 to K’s residuary beneficiaries
1/4 to A’s residuary beneficiaries.

Or am I missing something?

Thanks

Nicola Finbow
Clough & Willis Solicitors

It will all depend on the precise wording of mother’s will and A’s will.

On the assumption that Mother’s will created a life interest in A & R jointly (and not just a right of occupation), with remainder to A, K, B and R in equal shares, R is entitled to the income of the sale proceeds for life. If he is surrendering his life interest, then:
1/4 goes to R
1/4 goes to B
1/4 to K’s residuary beneficiaries
1/4 goes to R for life, with remainder to B.

If A’s will really does create another life interest, then it is a life interest that follows the life interest given to R under Mother’s will. If it’s a mistake, then it might be cured by construction or rectification, or R might agree to surrender it. But in that event, B takes as remainderman, rather than A’s residuary beneficiaries.

Josh Lewison
Radcliffe Chambers

My initial view is that A left his interest in remainder to B so he takes 1/2?

Iain Cameron
Acer Legal

Thanks both. On reading the will again, it is limited to a right of occupation. The wording in mum’s will states “subject as aforesaid my Trustees shall hold the net proceeds of sale and the net income until sale as part of my residuary estate as hereinafter defined”.

A’s will defines the Trust Fund as “my share of my property which I own at the date of my death and knows as ***.” It contains the usual provisions for a life interest and finishes with “subject as above the Property Trustees shall hold the capital and income of the Trust Fund for B.” He didn’t actually own the property though, or any share so I’m not sure the purported life interest in his will can apply?

Nicola Finbow
Clough & Willis Solicitors