Hi all, I’m hoping you can help me make sense of this situation.
I am acting in a sale. The property is registered to Mr and Mrs X as tenants in common. Mr died some time ago and under his will left his half share to Mrs for as long as she is able to live at the property, and to their three children thereafter. The executors appointed in the will were Mrs and the three children.
Mrs is now in a care home and the three children are selling as her attorneys.
I’m a little confused as to how to deal with the form A restriction, is it simply appointing another trustee in the transfer, or am I able to remove the restriction via RX3/4 since the children are trustees of the legal estate, beneficiaries, and attorneys for the surviving legal owner?
A sale by the attorneys, so long as there are at least 2 acting, should be sufficient for the buyer’s purposes.
You cannot remove the form A restriction unless you are certain that the trust has come to an end, which would require a private client lawyer to review the Will, and determine the type of trust.
The children’s roles need to be kept seperate, as it would amount to a breach of their obligations as an attorney and trustee to receive funds personally (as beneficiaries) if the trust is supposed to continue for Mrs benefit.
I agree with Ashley and would further advise that the LPA/Executor role needs to be considered. I.e. it may be possible for 1 or 2 to act as attorney for Mrs, while 1 or 2 can act as executors/trustees. However, depending on how LPA/Will has been worded, and whether Mrs has capacity, a Court of Protection consent order may be needed to deal with Mrs’ share of the property.
There is a further alternative approach which may or may not be appropriate in this case, but which we have discovered this year and which has been applied twice (once where we were on the losing side and once where we were successful in removing the deceased tenant in common).
In both scenarios there were tenants in common where one died. In the first case, we acted for the executors of the will of the first to die. We learned that the property was on the market and there was an application to remove the deceased from the title. We argued that the executors should be placed on the title and our counsel advised is that the surviving tenant CAN remove the name of the deceased holder and can go onto the title as the sole legal owner.
In the most recent case a property was bought in the name of two elderly ladies, both of whom we think we were being coercively controlled by two individuals, one of whom held property and finance POAs for both ladies. One of the ladies has died and the LPA in respect of the other has been revoked. The title to the property was held as tenants in common.
The Land Registry have put the title into the sole name of our client the surviving lady so she holds the title in her sole name. I have been appointed as an additional trustee of the underlying trust to protect the interests of the estate of the deceased lady.
All of this in spite of there being restrictions on the title of both properties. In the present case it would be interesting to know what the terms of the restrictions are.
Michael McCabe
Galloways Accounting Private Client Limited.
The executors of the deceased tenant in common have no role in the sale. The surviving trustee appoints another trustee of her choice. The LPA should be capable of being used to exercise trust powers unless it contains unusual restrictions, as the donor has a beneficial interest in a trust of land. The form A restriction will require an additional trustee to be appointed to give a receipt for the proceeds of sale - it would not have to be one of the attorneys and could be done, as suggested, in the TR1.