In the context of a Will there subsists a broad hinterland of the standard of appropriate behaviour to be expected from a trustee whose role is a creation of the Court’s historic equitable jurisdiction.
A trustee administers property that does not belong to him on behalf of the beneficiaries; although he also owes a duty to the settlor to stick to the terms of the trust and the general law of trusts he has a duty to act towards beneficiaries in a way the Court will regard as entirely conscionable. Like Caesar’s wife he should be above suspicion; it is not like a robust contractual relationship which within the strict confines of the terms of the contract allows one or both of the parties if they wish to behave, well, like Mr
Trump.
The facts of any given case are crucial but the trustee should operate in a way that he will be able to justify to a Chancery judge without censure or embarrassment or, of course, the dreaded personal liability with costs out of his own pocket.
I suggest that a notice be given to the beneficiary that the trustee has reached the conclusion that the property became available to him as of a specified date, that he ceased to occupy it no later than a second specified date, or has never done so if relevant, with the consequence that the 6 month non-occupation period will end on a third specified date whereupon his right to occupy will terminate unless before then he….etc etc.
It would not be fair to specify a past commencement date even though a judge might ultimately agree that the 6 month period strictly began earlier. Provided a judge would likely decide objectively that it began not later than the date of the notice, it would surely be beyond criticism to state in it that the right to occupy will end on a specified date 6 months ahead unless before then occupation resumes (or, as it might be, begins).
There may be factual circumstances justifying the stipulation of a past date e.g. the trustee has been informed by the beneficiary that he has ceased to occupy or has.gone into a care home permanently.
Similarly with an apparent breach of a condition a notice should assert the fact and nature of the breach, require a remedy, specify what must be done and in what timescale, and the consequences for default.
A trustee should take into account the purposes for which the right was granted, the identity and personal circumstances of the beneficiary, the likely effect on him of the right terminating, and the corresponding rights of other beneficiaries. He is not your arm’s length landlord.
The drafting of a right of residence is often insufficiently precise. It deserves almost as much attention as the grant of a tenancy but with due indulgence in framing its terms for the identity of the grantee and any relevant personal relationships. No one drafting a tenancy outside of a will would fail to define the term, its date of commencement, the reciprocal rights and obligations, who can occupy with the tenant, the reciprocal termination events —-not least the meaning of “ceasing to occupy”, service of notices, etc etc. All designed to ensure the parties know where they stand. If these are absent or equivocal the trustees should deal with matters in a way a judge would endorse if it came to it.
Jack Harper