Establishing % Split of Tenants in Common property in an Estate

chat01

Hello, I have a query regarding Tenants in Common in relation to a property that is part of my fathers estate, of which I am an Executor.

My father and step mother purchased a property in 1988 as joint tenants.

In 2003 they approached a local firm of solicitors and asked them to write new wills and sever the joint tenancy as my step mother was getting ill. They both had children from previous marriages and so this move was understandable. 

Step mother passed away soon after in 2004 and there was provision in her Will that a sale of the property would require my father's consent.

My father passed away in 2019 and had remained in the property until this time. 

A sale of the property has now been agreed and we wish to deal with the split of the proceeds between the two estates. 

I cannot establish that the split of the tenants in common was anything other than 50/50. I have contacted the solicitors who acted in the drafting of the wills and the notice of severance but they have advised that 'the severance file will have been destroyed given it was 17 years ago'.

I have no reason to think that the split was anything other than 50/50 but my conveyancing solicitor is reluctant to split the funds until this can be clarified, which I am unsure it can.

There is currently nobody dealing with step-mothers estate, as unfortunately all her children, and the two executors/trustees named in her will have all passed away between her and my fathers dates of death. I understand her estate will pass to the spouses/children per her childrens wills or rules of intestacy.

All I am trying to do is distribute my fathers share to his beneficiaries, but I am hesitant to do this just in case that down the line someone, a beneficiary of her Will say, challenges the split. 

Can the % split be proven somehow, or is there legal precedent that enables me to fall back on a 50/50 assumption?

My understanding is that they would not have completed a Declaration of Trust (which I think would define any split) in 2003 as they were not purchasing the property. The solicitors correspondence I have from that time only refers to their two wills and the notice of severance.

Any advice and help would be greatly appreciated. 

Many thanks.

xylophone

It seems to me that unless there is a specific Declaration of Trust  (or other evidence) which specifies the beneficial split as anything other than 50% each, then the presumption must be for 50% each as  it is in any other joint asset.

getmore4less

What are the specific terms in the wills about the shares of the properties.

Were they inherited outright by other beneficiaries or was there life interests?

Was the land registry updated in 2003 and/or  2004

 
If there was no life interest just a term to get agreement to sell then there is a CGT assessment  for the other share and that will have a clock ticking to get that paid once the property completes. 

DId the step mothers estate ever get administered or started by the named executors.

 

tacpot12

If you can find the solicitor's invoice from 2003 it should itemise the creation of a Deed of Trust. If no Deed of Trust is mentioned on the invoice, the split cannot be other than 50/50. 

chat01

There is no mention of shares of the property in the wills.

The land registry was updated with the restriction inn 2003.
Her estate only really consisted of her personal possessions and her interest in the property, so there wasn't anything material to deal with when she passed.

Step mums Will is very brief and looks like this:

THIS WILL dated              is made by me 

l. I revoke all earlier Wills

2.1 I appoint as my executors and trustees my husband and my son 

2.3 in this Will the expression "my Trustees" means (as the context requires) those of my executors who obtain probate and the trustees for the time being of any trust arising under this Will.

3.1 I give my beneficial interest in my house ("the House") to my Trustees on trust for sale with power to postpone the sale and to stand possessed of the net proceeds of sale and net rents and profits until sale upon trust for my three children in equal shares provided that my Trustees shall not sell the property without the consent of my husband 

3.2 My Trustees may sell the House at the request of my husband and buy another to be held on trust for sale on the same terms as the House

3.3 Any surplus arising from the sale and purchase I give in equal shares to my children.

4. My Trustees shall hold the rest of my estate on trust for sale on the following terms:

4.1 to pay debts executorship expenses and any inheritance tax in respect of property passing under this Will.

4.1.1 to pay the residue to my husband if he survives me by 30 days

4.1.2 if this gift fails to pay the residue in equal to my three children.

5 For the purposes of clauses 3 and 4.1.2 if any of my children die before me then their children shall take the share which their parent would otherwise have inherited.

chat01

tacpot12 said:

If you can find the solicitor's invoice from 2003 it should itemise the creation of a Deed of Trust. If no Deed of Trust is mentioned on the invoice, the split cannot be other than 50/50. 

I do have the invoice, solicitors covering letter and receipt for payment from 2003 and none of them refer to Deed (or Declaration) of Trust.

Keep_pedalling

As the property was previously owned as joint tenants then I can’t see the spilt  being anything other than 50/50 unless a DoT was drawn up to say otherwise. Hopefully the documents you have from the original solicitor will be enough to convince the current one. 

getmore4less

chat01 said:

There is no mention of shares of the property in the wills.

The land registry was updated with the restriction inn 2003.
Her estate only really consisted of her personal possessions and her interest in the property, so there wasn't anything material to deal with when she passed.

Step mums Will is very brief and looks like this:

THIS WILL dated              is made by me 

l. I revoke all earlier Wills

2.1 I appoint as my executors and trustees my husband and my son 

2.3 in this Will the expression "my Trustees" means (as the context requires) those of my executors who obtain probate and the trustees for the time being of any trust arising under this Will.

3.1 I give my beneficial interest in my house ("the House") to my Trustees on trust for sale with power to postpone the sale and to stand possessed of the net proceeds of sale and net rents and profits until sale upon trust for my three children in equal shares provided that my Trustees shall not sell the property without the consent of my husband 

3.2 My Trustees may sell the House at the request of my husband and buy another to be held on trust for sale on the same terms as the House

3.3 Any surplus arising from the sale and purchase I give in equal shares to my children.

4. My Trustees shall hold the rest of my estate on trust for sale on the following terms:

4.1 to pay debts executorship expenses and any inheritance tax in respect of property passing under this Will.

4.1.1 to pay the residue to my husband if he survives me by 30 days

4.1.2 if this gift fails to pay the residue in equal to my three children.

5 For the purposes of clauses 3 and 4.1.2 if any of my children die before me then their children shall take the share which their parent would otherwise have inherited.

I would get legal advice on that tax status of the share of the house 
This was pre transferable nil rate bands  also not clear if any interest in possession arises from clauses 3.1 and 3.2 which effectively give the spouse the right to benefit from living in the property(but not any rent if rented out).

Who is acting as second trustee for the sale?