Right to occupy in Will

The testator made a Will when she was married. Before her death the testator and her husband separated and he moved out of the family home. Divorce proceedings were commenced and the decree nisi was issued but not the decree absolute. The Will includes a right for the not quite ex-husband to occupy the family home until his death or re-marriage. The executors who are the testator’s children from another marriage would like some time to clear the house of their mother’s belongings and would prefer not to allow their step-father in to the house until Probate has been granted, he insists he was entitled to take up occupation from the date of the testator’s death. Any thoughts?

Henrietta Brett
Willett & Co Solicitors

Hi Henrietta,

Under s.1 AEA 1925 he’s has no entitlement. The estate is deemed owned by the executors at this point.

Richard Bishop
PFEP

Thank you!

Henrietta Brett
Willett & Co Solicitors

1 Like

All he has at this point is a chose in action. His right to occupy would not arise until the property is vested in the trustees.

Simon Northcott

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A beneficiary under a will prior to assent merely possesses a chose in action and thus in the absence of permission of the executors I would have thought that nearly ex-husband has no right of occupation [AEA 1925 s.43].

Malcolm Finney

Until the estate is administered and all liabilities settled, a beneficiary including a life tenant has no right to possess the estate assets. However, If the executors delay in administering the estate step-father can bring them to court to force completion of same.

Kedia Delahaye

That’s very helpful, thank you.

Henrietta Brett
Solicitor
Willett & Co.

That’s very helpful, thank you.

Henrietta Brett
Solicitor
Willett & Co.