Sale of property with Form A restriction under LPA

We are acting on the sale of a registered property which is held in the names of Mr and Mrs as tenants in common. Mr has died, and Mrs is in a care home and lacks capacity.

The grant of probate to Mr’s estate appoints daughter and daughter’s husband as executors.

There is a registered LPA for Mrs appointing Mr and daughter as attorneys joint and severally.

My questions are can the daughter use her power under the LPA to appoint another trustee purely to act with her on the sale of the property? Or can she and her husband sign the TR1 as executors to Mr’s estate, and daughter sign as attorney for Mrs? If not, are there any suggestions on the best way to proceed?

Many thanks

Paul Finn
Goddard Dunbar

On the death of the husband, legal title to the property will have vested in the widow as the sole surviving trustee. The husband’s executors have no legal standing and cannot, therefore give legal title.

Another trustee will need to be appointed in order to give good title on the sale.

Whilst I believe the daughter will have the power, under s.1 Trustee Delegation Act 1999, to appoint the additional trustee, I am aware there are others who view the appointment of another trustee to fall outside of s.1(1), as in itself it is not a “trustee function”. The question may be one for the intending purchaser’s legal advisers, as they will need to decide on what they consider will give their client a sound legal title. They might insist upon an application to the Court of Protection for the appointment of the additional trustee of land.

My comments are on the basis that there is nothing within the LPA itself that would prevent the daughter exercising her mother’s powers as trustee of land.

Paul Saunders

What happens to the husband’s beneficial interest in the property on his death? If the wife is the sole beneficiary under his Will then the executors can assent to the vesting of his share in the wife so that she is then the sole trustee and the sole beneficial owner, which will then allow the Form A restriction to be removed (subject to neither share having been charged) and the attorney can then deal with the sale in the usual way.

However, the usual reason for a tenancy in common is to allow the respective shares to pass under the Will either into a trust for the survivor or to a NRB discretionary trust, or directly to children. If this is the case here then refer back to Paul Saunders’ response.

Graeme Lindop
Coles Miller Solicitors LLP

Thank you for your replies.

The husband’s estate does not pass to his wife, therefore Paul Saunders’ response seems the best approach, and thank you for this.

I also thought that subsections 6A-6D of s. 36 Trustee Act 1925 might be an option?

Paul Finn
Goddard Dunbar

Yes, Paul, you are right – s.36(6A-6D) TA 1925, in particular s.36(6C), applies to this scenario.

I note, though, that s.36(9) would also apply – the Court of Protection being required to give leave for the appointment to be made.

Paul Saunders

According to the land registry the sole surviving trustee alone should sign the transfer in order to transfer the deceased’s share in the property held as tenants in common to his beneficiaries.

If there is no reason not to transfer the husband’s share to his beneficiary (depending on the number), the wife’s attorney can sign the transfer to the beneficiary. On sale the wife’s attorney and the new owner can sign the transfer without needing appoint another trustee.

Viju Chhagan
Palmers Solicitors