How much wording needed t form a life interest

My BIL father has just died and they have asked for my opinion on the Will he made. It was made by solicitor but has a clause in it which seems to be a hybrid of a life interest and right of occupation.

The clause says this (names obv changed)

"(a) I GIVE free of tax 25% of my interest in the property know as **** or such other property as I may occupy as my principal house or flat at my death (the “Property”) to my son ****** absolutely

(b) I declare that there shall be no sale of the property in the lifetime of my wife without the consent in writing of my wife or her duly appointed attorney"

There is no further provision in the Will as one would expect for a Life Interest Trust, but it seems odd to me? Is this wording sufficient for there to be a life interest established? Or is this more of a long term right of occupancy which would terminate if the wife sold the property?

Many thanks

Gemma Van Duke
Bishopsgate Law

The gift to the son is absolute, not a life interest.

As the holder of a minority interest, the son will not be able to force a sale (other than perhaps via an application to court).

What has the testator done with the other 75% of his interest in the property? I suspect he has given it to his wife/widow (perhaps the son’s step-mother) on a life interest with a gift over to the son. If so, the added provision is intended to help protect her continued occupation of the property.

Paul Saunders

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Hi Paul, thank you for your reply.

The remainder of the estate goes to his spouse (she is the son’s mother). Presumably the wording of the clause means that, if she needed to move for any reason, she would have to pay that share over to her son, it could not go forward to a new property unless the son consented to that.

Gemma Van Duke
Bishopsgate Law

Yes, unless there is any other provision within the will restricting the
son’s absolute entitlement, upon a sale of the property the son should
receive his 25% entitlement of the net sale proceeds.

If he allows his share to be used to help buy a replacement property,
this is likely to create a new settlement of which he is the settlor.

Should such a situation be contemplated, he should take his own legal
and taxation advice at that time.

Paul Saunders

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