Hi all
I am dealing with a Will trust which started in 1972. The entire estate was left to the deceased’s children for their lifetime. On death of the children there was a successive life interest for X. On X’s death, the remainderman are X’s sons. X did not have any children and so there are no remainderman. Am I right in thinking that a partial intestacy therefore arises and the rules of intestacy now apply to the deceased’s Will?
Thanks
Yes, in these circumstances I believe a partial intestacy will arise. The rules applicable, and the beneficiaries enttled will be those as at the date of death of the original testator. Accordingly, the beneficiaries will include the estates of the deceased children as well as grandchildren being the issue of any children who died before the testator.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
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Thanks very much for your response, Paul.
Hi Paul, I understand you are a bit of an expert on Settlements under the Settled Land Act. This Trust is a settlement under the Settled Land Act. The property was assented to the Tenant for Life who has just died. The property is unregistered. Can the PRs of the Tenant for Life who has just died sell the property, rather than having to assent the legal title in the current Tenant for Life (as any assent would trigger first registration) which, with current Land Registry, timelines would take around 15 months to complete so want to avoid that if possible? Thanks.
As the strict settlement continues, the SLA trustees are the persons entitled to a grant in respect of the settled land – the deceased tenant for life’s executors should apply for a grant save and except” the settled land. If the executors seek a grant covering the settled land also, then they will be perjuring themselves as the statement of truth they sign includes the statement that there is no land passing under the grant which is settled land (which will be incorrect).
Once the SLA trustees have obtained their limited grant, technically any dealing with the land are frozen until the land is vested in the new tenant for life. I say technically, as this does not appear to have prevented SLA trustees selling or letting the land in many instances. However, if the SLA trustees want to deal with the land, I would recommend that they ensure the new tenant for life consents to any dealings, and they have satisfactory evidence in writing of such agreement as it would generally be the tenant for life (and their successors) who could raise objection to any transactions , which could also impugn the title of any purchaser.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Hi Paul, after doing some more research I had realised a separate Grant would be needed. Thank you for confirming my thinking, it is always reassuring! I think, practically, getting the tenant for life to consent would be the quickest way to deal with matters as the house is falling into disrepair and really does need to be sold sooner rather than later. Thanks so much.
Hi Paul, I was wondering if you can help me further on this, please? The delays in obtaining the Grant Limited to Settled Land is causing problems. Is it possible for the SLA trustees (without a Grant) to vest the property in the new tenant for life (by Vesting Assent) and he then sell the property by auction? The Vesting Assent would obviously trigger first registration as it is unregistered land but that doesn’t have to be registered for two months - so could the new buyers deal with the first registration after the auction? Or is it not possible to do anything with the land without a Grant? I would also not want to be in a situation where the Vesting Assent is executed and then there being a trigger for first registration (and LR taking around 2 years to process these) and that having to be finalised before the property is sold as that will cause the longest delay. Any advice would be appreciated.
In the absence of the grant, the SLA trustees have no legal title to vest in the new tenant for life so that even if a vesting assent is made, the tenant for life will not have a “good title” and may find that the auctioneers would be unwilling to list the property. Even if the auctioneers did list the property, the tenant for life would be in breach of the terms of sale if they could not provide a good title within the contractual time frame.
Once the grant is issued, it may be that a vesting assent can be completed just before the auction, with the contract providing for the purchasers to deal with first registration. However, leaving aside that this is likely to impact the potential sale price, is this a practice that the auctioneers would be comfortable with?
I agree with your general view – a less than ideal situation with the various delays with HMCTS and HMLR.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Thank you so much for your response, Paul. I thought that was the case. In these circumstances, is there any merit in trying to obtain an Ad Colligenda Bona Grant to try and get the property dealt with? It is in serious disrepair!
If not, and I have to obtain the Grant Limited to Settled Land, do you think that the SLA trustees can sell by auction without vesting in the new life tenant? If we have to vest then is it the end of the world that the buyer deals with first registration as that is generally what happens anyways?
Natalie Tonkin
Solicitor
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Technically, until a valid vesting assent is made any dealings with the settled land are frozen.
Under the SLA, the powers of sale, etc. are vested in the tenant for life, except when they are a minor.
Should the SLA trustees attempt to sell the property, whilst many may be ignorant of the “niceties” relating to dealings with settled land and the sale might go through, the trustees will be open to a claim from the beneficiaries. HMLR might have sufficient knowledge to refuse registration, which would give the trustees another headache.
With regard to a grant ad colligenda bona, I am not sure that this is appropriate where a settled land grant is required, and wonder if others have any experience of this.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Thanks, Paul. No I have had no experience and was just clutching at straws, really. Have discussed with a conveyancer here and the first registration has to be dealt with before the auction due to the trigger so it cannot be left for the buyer(s) to deal with. Hopefully we can expedite if we have an “impending auction”, so will save some time that way. It is what is in, unfortunately, and just need to go through the process (and associated delays). Many thanks for all your advice.