Consent of a Life Tenant

Trusts Discussion
1

If the Will of the deceased says:

“I devise my freehold dwelling house or the principal dwelling house in which I shall be residing at the date of my death which shall belong to me UNTO my Trustees UPON TRUST with the consent of my son XXXX during his life to sell the same and TO HOLD the net rents and profits until sale and the net income from the proceeds of sale IN TRUST for XXX during his life and after his death my Trustees shall hold the proceeds of sale of the said property as part of my residuary estate”.

XXXX does not have capacity. Does this mean that life interest trust cannot be set up as XXXX cannot give consent?

Delfin Posada
Posada & Co

2

Consent of XXXX is required to the sale of the property, not to the establishment of the trust which takes effect as part of the process of administration of the estate.

Consent to sale could be given on XXXX’s behalf by an attorney, if he has one, or otherwise by the Court of Protection.

Tim Gibbons

3

If there is a registered LPA, the attorney can consent. If not a deputy will need to be appointed, or an application to the court of protection to agree to the sale.

Simon Northcott