Dear All
If a declaration of trust has been drafted for a property and one of the individuals (all receiving a equal share) has no capacity how can he sign the declaration if he has no capacity.
Any advice would be helpful
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to add further to the point above, there is 1 trustee and 3 beneficiaries one of whom who has no capacity.
How would the individual sign the declaration of trust if he has no capacity AND no LPA or COP is in place.
Regards
Awais
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Why is there only one trustee for a trust of land? It would make more sense to appoint a second one now to save them having to do this when the property is sold to get round the Form A restriction.
Would the non-trustee beneficiaries actually need to sign it at all? If they do, I can’t see any solution other than applying to the COP. Even if P has capacity to make an LPA but not enter into a DOT, would everyone involved be prepared to wait until it’s registered?
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could a clause be inserted to the Declaration of trust where the beneficiary who does not have capacity is to receive the share due to him but he not be a party to the signing. Upon DOT being signed COP is lodged by one of the family members to become his appointed deputy and thus manage any share he is to receive in the future.
Would this be viable.
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You need two trustees for a trust of land. The incapacitated beneficiary cannot sign.
If the trust has come into being through an inheritance or gift, and the proportion passing to the incapacitated person is not being altered in any way, then the parties with capacity can sign with a recital confirming the background to the matter and how the interests have arisen. It is not necessary for beneficiaries to sign declarations of trust, as their interest in the property property will be held on trust for them regardless of any formal agreement. The declaration cannot however try to put in place rights of pre-emption or any other restriction on the incapacitated beneficiaries share as they do not have the capacity to agree to these terms. The declaration would simply be a way of recording the existing division between the co-owners. Anything else would require an application to the Court of Protection, or a Trusts of Land claim.
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“You need two trustees for a trust of land.”
I disagree with Ashley’s statement, as above.
Whilst two trustees are required to give a valid receipt for capital monies under a trust of land, there is no requirement for there to be two trustees for such a trust to be valid. There have been many cases before the courts where an individual has declared trusts over land with themselves as the sole trustee and which have held to be valid.
If there is a sole trustee of land, consideration should be given to entering the appropriate restriction at HM Land Registry so that anyone dealing with the legal title is aware of the trust. If there is no restriction, the sole trustee can deal with the land notwithstanding the requirement for there to be two trustees as any purchaser for value will not be fixed with notice.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
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I wonder if you feel able to disclose a bit more of the background so that we can consider the matter in more detail?