I would be grateful for your thoughts … we are dealing with an estate where the testator gives his share in his main residence to his Trustees to hold on trust for his wife for life, with remainder to his children. Wife does not want the life interest and intends to disclaim. The Will specifies that in the event of the life tenant disclaiming it would be treated as if she had died on the date of the disclaimer.
All parties are (informally) in agreement that, rather than a share in the property passing to the remaindermen, a lump sum equivalent to the net sale proceeds of the share will be paid instead. I feel that, to protect all parties, a Deed would be appropriate setting out that the remaindermen agree to accept the amount in lieu of the share in the property but am undecided how best to approach this. I therefore wondered how other practitioners would deal with this?
If you disclaim, the pieces fall where they do. If you try to direct where those pieces fall, my understanding is that would be fatal to a disclaimer.
I suspect the property was owned by the deceased and the widow as tenants in common and that she wants to do away with the trust and have sole ownership of the property.
I wonder if the will might permit the trustees to sell the trust’s interest to the widow. She might then disclaim her interest once that transaction has completed?
Perhaps engage with Chancery counsel to ensure that a route is adopted without tripping hazards!
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals