In a Will there is clause stating ‘My Trustees may allow XXXX to reside rent free…’
The family are challenging the words ‘may allow’ and how this means possibly and not can live rent free.
Do they have a case?
I’m not completely sure from your description which position the family are taking but “may” certainly doesn’t mean “shall”. The trustees appear to have a discretion.
However, I would have thought other principles may come into play - e.g. if XXXX is a life tenant of the property, there is little point charging XXXX rent and if they are not in occupation they should receive any rent paid by tenants; if XXXX is a discretionary beneficiary (and in a sense this clause itself makes them a discretionary beneficiary) the trustees have to act in the best interests of the beneficiaries including XXXX. They have to exercise their discretion reasonably, fairly as between the beneficiaries, and should take into account the testator’s wishes when exercising that power. If the testator wished to allow XXXX to live in the property rent free, the trustees should at least have a valid reason for not following that wish.
Andrew Goodman
Osborne Clarke LLP
Hi,
Thank you for your reply. The position the family are in is that they do not want the life tenant living in the property, as he is causing them a lot of emotional grief. It seems as if the family are trying to find loopholes and had brought this wording ‘may allow’ to my attention.
Many thanks,
Danielle Sibley
Emotional grief or delaying them getting the money? Call me cynical …