Clients on 4th marriage - property subject to dec trust


I’d welcome views on the following situation:

  • Both H & W are on their fourth marriage. Their objective is for life interest in property for the survivor, but there are complications:

  • He owns the legal title of Blackacre, which has a mortgage

  • W gave H 50% of the valuation of Blackacre as her interest in the house.

  • H & W agreed a Dec Trust to the effect that both have 50/50 equitable interest in the house: on future sale any outstanding mortgage is paid out of H’s 50% share. (It does not, however, discuss transference of shares on death.)

  • This Dec Trust is covered off at the Land Reg with the following restrictions:

(30.11.2018) RESTRICTION: No disposition by the proprietors of the registered estate is to be registered unless one or more of them makes a statutory declaration or statement of truth, or their conveyancer gives a certificate, that the disposition is in accordance with the Declaration of Trust dated 22 November 2018 made between Mr and Mrs or some variation thereof referred to in the declaration, statement or certificate.

4 (30.11.2018) The Transfer to the proprietor contains a covenant to observe and perform the covenants referred to in the Charges Register and of indemnity in respect thereof.

5 (30.11.2018) RESTRICTION: No disposition of the registered estate by the proprietor of the registered estate or by the proprietor of any registered charge, not being a charge registered before the entry of this restriction, is to be registered without a written consent signed by the proprietor for the time being of the Charge dated 26 November 2018 in favour of Building Society referred to in the Charges Register.

  • HIS will requires a life interest (a right of occupation-type) as he is the sole owner of the legal title

  • HER Will requires a life interest in property of her beneficial interest.

BUT…as a general point, would a Dec Trust dealing with respective shares in life need amending to reflect dispositions of interest post-death via their Wills? Or is it sufficient that it specifies separate interests without the need to discuss what each person does with their share, when that happens and under what circumstances?

Thanks in advance.

Paul Tansley
Phoenix Wills & Probate