Allowing deceased's husband to occupy home

I have a client who is sole executor and beneficiary of his late mother’s estate. Client’s mother was married at the time of death and lived with her husband in a property. The property was owned by client and his mother as beneficial joint tenants.

My client is now legally and beneficially entitled to the property but has his own home and no need to occupy the property nor use it to raise finance. He would like to allow his late mother’s husband to occupy the property for as long as he wishes. He intends to allow him more security than an AST would allow.

I understand that a Deed of Variation would allow the joint tenancy to be severed for IHT and CGT purposes but how would the creation of a right to occupy be viewed given there is no actual effect in real property law? Is the client’s other only option to create a life interest trust for the husband?

Any thoughts greatly welcomed.


Sian Danford
Harrisons Solicitors LLP

A more bespoke long lease might be an alternative option, with restrictions against assignment or charge by the tenant and setting out any agreed terms about occupation and use of the property.

Depending on the period granted and any consideration (although it sounds like this would be none or minimal) it may need to be registered and the need to complete an SDLT return would have to be considered.

This would avoid having to report a life interest in relation to husband’s estate simplifying the use of his NRB.

Chris Burrows
Glaisyers Solicitors LLP

The creation of a right to occupy under a variation creating a testamentary property trust, or under a lifetime trusts would probably create an IPDI which means the value of the property on second death would be charged to the husband’s estate even though it is passing to the son. I would have thought a license to occupy rent free, but having to insure, maintain and repair etc. would be easier?

Iain Cameron
Acer Legal