Scenario - Husband and Wife owned property as tenants in common. H died (2017) and his Will leaves estate to Wife absolutely.
Property Value £345k and legal title has standard Form A restriction.
No Grant has been obtained by previous solicitors. The small liquid assets of Husband have been dealt with. Family are desperate not to apply for a Grant.
Surviving spouse could appoint a second trustee at point of sale to overreach the Form A restriction . Law of Property Act confirms the order of appointment would revert to the trustees appointed under the Will of the Husband. Wife has prepared LPAs appointing son and grandson as her Property & Affairs attorneys. What would happen if prior to sale Wife lost capacity. Her share could be sold by her attorneys but we still have an unresolved share held in trust.
However, the Form A restriction remains and surviving spouse is minded to sell the property and move into a warden assisted property ( considerable financial downsize).
Consideration has now turned as to the need for a Grant - to transfer deceased’s share in the property into the names of the Trustees as per his Will.
Or
Submit RX1 and Form DJP to Land Registry seeking the removal of deceased as proprietor, removal of Form A restriction and inclusion of following restriction:
“No disposition by the Proprietor 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 Will of XYZ dated ABC or some variation thereof referred to in the Declaration, Statement or Certificate.”
I welcome and reads thoughts or processes when dealing with first death scenarios and life interest trust wills.
If H left all to W, as you say, then there is no life interest trust. the executors can assent the half share to the wife and the form A restriction can be removed leaving the wife as the sole owner.
Why are the family “desperate not to apply for a grant”? Are the likely costs involved so great as to outweigh the other costs considerations and, or concerns?
Whilst I would favour the family taking a grant and making a formal assent, which makes the whole situation transparent, I understand that the procedure using RX1 and the DJP form is relatively straightforward.
However, if there is any doubt as to the widow’s capacity to make the declarations required, it might be preferable to obtain the grant.
(I query the reference to transferring the deceased’s interest to the trustees of the will, if the widow is given the property absolutely)
Thank you all for comments. Apologies for not confirming Will creates a life interest in surviving spouses favour for remainder of life (limited to the property).
Daniel Boyle
Brethertons Solicitors LLP
This is a situation I come across regularly. It seems entirely possible for H&W’s to own a property as TIC and create Life Interest Trusts on first death. Legal ownership of the property vests in the survivor who can appoint new Trustees of the property. This could be the Trustees named in the Will of the first to die despite the fact they don’t have a Grant. On death of the second spouse, legal ownership is with the appointed Trustees who then sell and distribute.
From a conveyancing perspective this makes it perfectly possible for H&W’s to pass a property on following their deaths without the need for a Grant in either estate.
I always advise the Trustees of the first to die to take out a Grant to confirm the validity of the Will and the Trust contained in it. This helps protect the Trustees of the first to die in any future dealings with the Trust property.