We are acting in an estate whereby the deceased’s Will contains clause giving the deceased’s three properties (one owned as JTs and main residence and the other two in deceased’s sole name and currently tenanted) to the trustees to hold on trust for sale but with power to postpose the sale in accordance with the following (extracted from the Will):
a) The surviving spouse (‘the Occupant’) may live in any of the properties and use them as her principal place of residence during her lifetime
b) The properties may not be sold during the lifetime of the said Occupant without her consent but she shall pay all outgoings and insure the property
c) At the request of the Occupant the Trustees may sell the Properties and buy another one to which the above provisions shall then apply. Furthermore, any surplus arising from the sale of the deceased’s share of the properties and the purchase of another shall be held on trust by the trustees subject to (d)
d) When this trust ends, deceased gives all his estate and interest in the properties to be bequeathed per (e) below
e) Discretionary Trust to children and remoter issue (whether born or unborn) – **therefore cannot vary without a court application due to unborn beneficiaries
The surviving spouse wishes to sell one of the properties with which to make PETS (value £420k) but it would appear that the clauses above would prevent her from doing so.
I would be grateful if someone could clarity whether a property could be sold, and a replacement not purchased under the above terms, My initial thoughts are that the sale proceeds from a property sold and then not used to purchase another, would have to enter the discretionary trust although the Will wording doesn’t provide for what should happen in this event.
Many thanks in advance,
Luke