I am drafting Wills where spouses who own their property as beneficial tenants in common 50/50 wish to provide a right of occupation for the survivor with provision for the trustees to join with the survivor in purchasing an alternative property.
Clearly rights to occupy need to be more tightly drafted than a full life interest. The precedents use terms for the replacement property such as ‘to be held on the same trusts’ or ‘the trustees shall have regard to the terms of the trust’ so is the 50/50 interest in the original property implied in the trust of the alternative property?
Or can the trustees agree to hold a larger than 50% share in the alternative property if the survivor needs to release monies from their personal share and, if so, should this be specified?
Is there any need to say the survivor has a right to live in that property? As a legal
owner and beneficiary in actual occupation they cannot be removed without court order anyway. What are the benefits to the widow or widower or surviving partner to specifically giving the right to occupy, aside from clarity of intention, and what are the drawbacks?
Apologies. I should have said that this is a second marriage situation and each spouse has children from a previous relationship and they have no children together. Hence they wish to grant a right to occupy for the survivor with their respective shares safeguarded for their respective children.
I don’t think that “on the same trusts” implies that a replacement property has to be owned 50-50 between the survivor and trustees, just that the trustees’ share is still held on the same terms as it was for the original property i.e. on trust for children with a ROO for survivor.
More to the point, is there a particular reason why they want a ROO rather than a life interest (or indeed a shorter IPDI)?