Tenants in common or joint tenancy?

xylophone

https://www.gov.uk/joint-property-ownership/change-from-joint-tenants-to-tenants-in-common

The joint tenancy can be severed whether or not there is agreement between the parties.

It would be usual to register this with the Land Registry if the property is registered land.

It seems that this was not done but may not be legally necessary- http://www.fieldoverell.com/family-law/financial-matters-property-and-finance/joint-tenancy-tenancy-in-common-and-severance-of-tenancy/

http://www.mindatrest.co.uk/blog/severing-joint-tenancy

The notice to sever appears to be what is essential?

so they don't benefit in future on the increasing asset of the house.

If the property was indeed held as TIC at the time of the husband's death, then it is inevitable that they would benefit on any such increase on sale of the property because it is the asset of the deceased that has passed to the ultimate beneficiaries in his will?

Apparently there's some other complexity in that the children are to be registered as having a beneficial interest in the property and that they are to have veto over any and all expenditure she makes in the upkeep and day to day running of the property.

Your mother's solicitor will no doubt be looking into this aspect.

If the tenancy was legally severed, then the late husband had a beneficial interest in the property which he could leave by will.

Did the will leave his interest to his children immediately he had died or was there a lifetime trust leaving it first to his widow and then to his children?

loubel

From what you have said, she did sign a dec of trust and understood this was intended to ensure the step kids would inherit his share of the house (albeit she apparently didnt read it before signing) so, regardless of the trust's existence not being noted on the property title, the house does appear to be owned as tenants in common and so his share will pass in accordance with his Will. Her solicitor will be able.to read all the paperwork and confirm this though.

If she made a new Will at the same time she would be sensible to review this as well to ensure that it does what she wants it to.

booksurr

take an objective view of what your step father and your biological mother were trying to do and lessen your self interest

you admit that the property was unevenly funded, and the larger input was by your step father

the property should never have been purchased as joint tenants to start with given step father had his own children as you cannot leave a share of a joint property to anyone under a will. The survivor takes the lot. the only way to leave a share in a will is if the property is tenants in common as each share has its own identity

your step father recognised this and your mother failed to understand what she was signing other than it "related to the will". the intent of your step father in severing the joint tenancy and establishing a declaration is clear and I think it is only fair to his children that the intent is honoured. They are entitled to share of the property upon the death of your mother as she retains a lifetime interest.

You get what your mother can leave you, they get what their father wanted to leave them. Children arguing over pennies of inheritances is horrible.

carled

xylophone wrote: »

https://www.gov.uk/joint-property-ownership/change-from-joint-tenants-to-tenants-in-common

The joint tenancy can be severed whether or not there is agreement between the parties.

It would be usual to register this with the Land Registry if the property is registered land.

It seems that this was not done but may not be legally necessary- http://www.fieldoverell.com/family-law/financial-matters-property-and-finance/joint-tenancy-tenancy-in-common-and-severance-of-tenancy/

http://www.mindatrest.co.uk/blog/severing-joint-tenancy

The notice to sever appears to be what is essential?



If the property was indeed held as TIC at the time of the husband's death, then it is inevitable that they would benefit on any such increase on sale of the property because it is the asset of the deceased that has passed to the ultimate beneficiaries in his will?



Your mother's solicitor will no doubt be looking into this aspect.

If the tenancy was legally severed, then the late husband had a beneficial interest in the property which he could leave by will.

Did the will leave his interest to his children immediately he had died or was there a lifetime trust leaving it first to his widow and then to his children?

I don't yet know all the intricate details, but I do recall a discussion in which a "discretionary trust" or similar(?) was mentioned that was administered by three trustees - his two children and my mum. I believe that as it's discretionary, once they've sorted out what is going into that pot, they all have to agree (I believe majority vote doesn't count) on the split of the pot. I believe - I don't yet know - that the two children (both relatively wealthy) are attempting to suggest that the pot is split 3 ways equally and immediately as they believe that because there are three trustees, it should automatically be a three-way division of the pot. I think my mum is planning on making a claim under the 1975 act as she feels this is not a reasonable provision. Neither do I, to be fair - she'd have been better off divorcing him before he died!

If the immediate 3-way split was enforced, to avoid complications with having to sell the house to fund paying out 2/3 of his half of the house to his children, there is, I believe, a clause that prevents the house being sold out from under her.

To those assuming I'm bickering over the money - I'm not. I don't have any interest in the money but I am concerned about my mum being in a position where she has to get his children to approve every penny she spends (as is currently on the table). I'm also keen to ensure she gets a reasonable provision from the estate in order to live without financial worry.

Ironically the husband was always irritated by what he referred to as his "scrounging children" (apparently they frequently asked him for money) and was dead set against them inheriting any of his money. Apparently the money in the house purchase was from his previous wife's estate when she died and he wanted to fulfill her wishes that it was passed on to her children, which is fair enough.

matttye

"The idea was apparently that some legal document would be drawn up that ringfenced the husband's initial contribution to the property purchase such that his children alone inherited that at the time of his death. Both wills were set up and my mum was told to sign various documents at the time, which she did thinking that they were all to do with the wills and this agreement on ringfencing this bit of money for his children."

He can only leave his share of the property to his children if it is a tenancy in common.

The doctrine of survivorship applies to beneficial joint tenancies which means that the beneficial ownership passes to the surviving beneficial joint tenants rather than via the deceased's will.

The case of William v Hensman [1861] established that a beneficial joint tenancy can be severed by mutual agreement. It would seem to me that your mother has agreed to this by signing the deed of trust.

The property appears to have been severed.

I'm a land law and conveyancing student so take what I say with a pinch of salt

bobobski

*The joint tenancy was severed. I think it would take The Hulk to sever the property

Sounds to me a straightforward case of severance. Really sucks for your mum, but I don't think there's a lot she can do about that part of it. It's just a fact.

matttye

bobobski wrote: »

*The joint tenancy was severed. I think it would take The Hulk to sever the property

Sounds to me a straightforward case of severance. Really sucks for your mum, but I don't think there's a lot she can do about that part of it. It's just a fact.

Haha true!

xylophone

I assume that your mother has a copy of her late husband's will - it would be advisable for you (and indeed for her) to read it very thoroughly before the meeting with your mother's solicitor and to note any matters arising that you wish to clarify.

Presumably her husband owned assets other than the house - cash, shares etc.

What exactly does his will say about these assets?

http://findlaw.co.uk/law/estate_planning/trusts/500145.html

https://www.gov.uk/trusts-taxes/types-of-trust

Land_Registry

Probably not too much I can add to the mix here as others have largely covered the issue of severance in the later posts.

It is though important to emphasise the very important point though the the registered title is not the sole evidence of whether they held the property as joint tenants or tenants in common.

In many cases, yes, a form A restriction will be applied for and registered but that may not always happen and this is a perfect example of that.

The registered title reflects the legal estate, namely the legal ownership of the property. The beneficial ownership is quite separate and whilst the two can become intertwined on the register on the issue of joint ownership it is not always the case.

Our online guidance explains how to check your ownership details and explains how such details may be contained in a trust deed/declaration of trust and that seems to be the case here.

As such, and you already understand this, the two issues seem to be 1) is there anyway your Mother can overturn the signed arrangements on the basis of non-understanding, lack of legal advice etc and 2) what exactly are the arrangements and to what extent is she (and the children) bound by the trust/wills etc

The solicitor should be able to unravel and explain on both points. The registered title will have no bearing on either at this stage.

At present the legal ownership rests with your Mother as she is the sole surviving owner. If the outcome is such that the children do have a valid interest in the legal estate, the property, then this will be something to also consider and discuss with the solicitor.

For example the children may 'insist' on your Mother transferring the property into joint names e.g. her and the children but there are other ways of protecting such interests e.g. registering a form A restriction. The options available should be considered very carefully to avoid any complications/issues in the future both for her, her own beneficiaries and the children referred to.

A complex situation but one the solicitor should be able to cover for you from both the legal title and beneficial ownership aspects

Mojisola

carled wrote: »

Apparently there's some other complexity in that the children are to be registered as having a beneficial interest in the property and that they are to have veto over any and all expenditure she makes in the upkeep and day to day running of the property.

This is an odd clause. There is often something about the resident owner having to keep the property in good condition but it's strange that the beneficial owners could stop her making changes.

I can't imagine anyone agreeing to this so it may give you ammunition in your argument that your mother wasn't aware of what she was signing.