H & W owned property as tenants in common and W has now died. Will leaves H right of occupancy in W’s half subject to conditions and then on to W’s minor child, C.
C lives with H and all are happy but H will breach cohabitation clause so stands the risk of a breach of trust. W died 6 months ago.
If in agreement is it possible for the trustees to amend trust to remove cohabitation clause and if so, because C is a minor would they need to apply to court?
Paul Mounce
Gosschalks
H is the trustee of land, holding the property for himself and his late
wife’s estate, half each.
Even should he breach the cohabitation condition he can continue to
occupy under his own 50% entitlement although, as the trustee of land,
will need to consider if he should compensate his wife’s estate (I.e.
make any payments to C).
Having said that, whilst C continues to occupy the property they are
receiving the benefit of their own right of occupation and it may be
that no compensation would reasonably be payable by H whilst C continues
in occupation.
There is the alternative view that if H is in loco parentis, C occupies
under H’s right of occupation and, therefore should be compensated
Paul Saunders