I have a situation where a wife wants to protect their share in the property from care fees by setting up the usual life interest and right to reside in favour of their spouse. However the spouse is mentally incapable and is expected to stay in care until his death so would not need the right to reside provisions. How best can her will be drafted in these circumstances?
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Either:
- leave the spouse an interest in possession. After the death of the wife, the house can be sold and the monies invested for the spouse or the trust revoked and appointed in favour of children; or
- leave the half share direct to the children (if IHT is not an issue or spouse is unlikely to survive 7 further years anyway)
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A flexible life interest trust might be worth considering:
Subject to Overriding Powers the trustees pay the income to the surviving spouse during the lifetime of the spouse.
The Overriding Powers would include a wide ranging power of appointment so that the trustees could appoint capital to the surviving spouse if, for example, there was a desire to upgrade the quality of care and have the spouse in a better care home that required more funding; alternatively the capital could be appointed out to the children. There are comprehensive precedents for this in Williams on Wills. Also James Kessler’s Drafting Trusts and Will Trusts provides some nice (short) precedents.
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