There is a young man in my village who does a lot of wills and seems to love sticking a right of occupation in almost all the wills I see that he does for elderly couples.
The one I’m dealing with at the moment there is a right of occupation and it then states that the property passes to the residue, which also passes to the widow unless she predeceased.
The widow was under the impression that each of them had left their respective halves to their daughter, but instead we have this situation where the widow possesses this right of occupation and if it ends, she will own the whole house which seems entirely pointless.
I was instructed to get a grant of probate and they are also concerned about the TRS. It seems their intention is unclear, what should I do? Ideally it would not exist or ve drafted in such a way it was of some use.
As the widow owns both the IIP and absolute reversionary interest, she could instruct the executors to immediately transfer the property to her outright, under Saunders v Vautier. She could then leave the property to her daughter in her own will.
Either way, the daughter may have a claim against the will writer under White v Jones as she should have an absolute reversionary interest but doesn’t. I’m not sure the possibility that she may later inherit from mother is necessarily a defence to that as mother could leave it to the cat’s home (or elephants if she doesn’t like stereotypes).
I wonder if there was a severance of the beneficial joint tenancy when the will was prepared? Presumably the idea was to protect the beneficial interest of the first to die from being swallowed up in care fees for the survivor? Is there a Form A restriction on the title?