Residuary gift subject to mortgage

A has been left the residue of the estate of B. There are also pecuniary legacies to C & D.

The main asset is the property which is subject to a mortgage.

A wants to keep the property but cannot afford to pay off the mortgage and the legacies from the estate as there are no other assets.

A’s parents want to gift A sufficient money to pay off the mortgage and the legacies so that A can retain the property. A does not own any other real property.

A’s parents will not be taking any ownership of the property. Can the executors pay the mortgage and legacies from money gifted by A’s parents or are there any issues or tax implications the executors should be aware of?

I suggest that this is dealt with as 2 separate transaction – the parents give the money to A, and then A gives the money to the executors.

For the position between A and the estate I suggest you look at the Court of Appeal judgment in Passant v. Jackson (Passant v Jackson (H.M. Inspector of Taxes). [1986] BTC 101 | Croner-i Tax and Accounting (

A will need to take their own advice on the implications of the parents providing the funds to enable the payment to be made to the estate.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals