I have a Will with a very basic life interest for the deceased’s spouse to occupy the property, that ends on her death. No express right to income or to move properties.
‘my trustees shall permit my wife if she so wishes and without payment to use my said property as a personal residence during her lifetime’.
The wife has vacated the property - what rights to the trustees have in respect of selling the property or vesting it in the remaindermen?
to avoid a court action, I would write to enquire if she no longer wish to use the property as her personal residence, if they are not sure she has vacated permanently. Or seek a declaration as it relates to the Trustees’ ability to vest in the remainder man in light of her vacating the property.
Thanks very much. Do you think it is sufficient for her to sign a letter that she has permanently vacated the property (if she is willing)?
Hi Victoria,
Agree with the above suggestions. I assume the Trustees will write to her, intermating the trust will now come to an end. Capacity is possibly an issue; we encounter this when the client moves into a care-home.
There are possible tax issues that ought to be considered if PRR is now not available. Not an expert here – I think an election will need to be made if she is now living in another property. I’d seek advice.
Richard Bishop
PFEP
I have a case where the deceased’s property is given to the executors to hold upon the following terms:
(A) to hold the property for my said daughter during her lifetime subject to her being responsible for keeping the same property insured under comprehensive cover for the payment of the council tax and water rates and other outgoings and for maintaining my said property in reasonable repair decoration and condition and thereafter
(B) To hold the property for such of my grandchildren A b and C as shall survive me and if more than one in equal shares.
The daughter is no longer residing at the property but is obviously having to abide by the provisions of the Will. As this is an IIP Trust, should the property be sold, I believe she will be entitled to the income from the proceeds of sale. There is no provision allowing her to choose a replacement property but the trustees, in a separate clause are given the power to invest any monies in or upon the acquisition or security of any property of whatsoever nature and wheresoever situate to the intent that they shall have the same full and unrestricted power of investing in all respects as if they were absolutely entitled thereto beneficially. However I do not believe that this would allow them to purchase a property for the occupation of the Daughter. Do members agree?
Patrick Moroney
Bwl solicitors
The wide investment clause must be read in conjunction with the Trustee Act 2000 (s3) “(1)Subject to the provisions of this Part, a trustee may make any kind of investment that he could make if he were absolutely entitled to the assets of the trust”. One augments the other.
I would think that the trustees do have the power to purchase a property for the occupation of the daughter.
Julian Cohen
Simons Rodkin
Surely, it is s.8 Trustee Act 2000 that governs the acquisition of property, whether for occupation by a beneficiary or for investment, etc.
Yes, the trustees have power to buy a replacement property, provided that it is within the UK.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Tut tut, how silly of me to overlook S8 of the Trustee Act 2000!
Patrick Moroney