Right of Occupation Trust Query

Hypothetical_Karen

Hi everybody!

I'm a long time browser of MSE forums, but have never participated until now.  I hope that's ok!

This is a hypothetical question for the time-being, based on my personal fears of what I believe might be happening "behind the scenes", as it were.  I have paid a legal firm to design and write my Last Will & Testament based on my wishes after I had a meeting with them in my home, and have put a Right of Occupation Trust into it (which cost me £295!) to allow my youngest son (40 years of age) to continue living in the property indefinitely after my death, so long as he keeps it in good repair and condition, and pays all outgoings himself.  I am the sole owner of the property and while we do live together, it isn't as joint tenants (in which case the Right of Occupation Trust wouldn't be necessary) nor as tenants in common.  The trust period will cease only when my youngest son either passes away or changes his home address.  At the end of the trust period, the assets held within the trust will be shared 50/50 to my 2 sons.

My other son is married and rents a property in London, while I live in Derbyshire.  There seems to be quite a bit of tension between my youngest son and my daughter-in-law (who believes she will be inheriting my home) and, without wanting to get either of them into any kind of legal disputes or involve solicitors unnecessarily, I was wondering if anybody would be able to advise me of any safeguards to ensure the Right of Occupation Trust I have purchased will be honoured?

Thank you for any advice.
Karen

doodling

Hi,

Firstly, please can you confirm that you are employing a local solicitor to draft your will?  The phrases "legal firm" and "meeting with them in my home" together with a price of £295 that looks like it came off a price list make me think that you might be dealing with someone other than a solicitor.  For something like this the use of a solicitor is very strongly recommended.

Who have you identified as executor(s) and trustee(s)?  They will be responsible for ensuring that the will is correctly executed and that the trust is put in place.  In an ideal world I would pick someone who appears impartial (i.e. isn't one of your sons or your daughter in law) but naming solicitors as executors / trustees can be expensive so it is something you need to think carefully about (do you have a niece / nephew who you get on really well with and who would be willing to do it?).  Remember that the trustees could be doing the job until your unmarried son passes away so choose them with that in mind.

Are both your sons in agreement with what you propose?  On the face of it, it is highly unfair to your married son as (assuming both sons have similar life expectancy) he will probably never see any money from the house (his children would though assuming he had some and the will is properly drafted).

I'd also be interested in the definition of "good repair and condition" - that sounds like an opportunity for endless arguments between your sons after you have passed.

Hypothetical_Karen

Thank you for your reply, 'Doodling'.

Let me give some more information.  The company that drafted my Will was a Paralegal firm I found online after I felt my (younger) son was being threatened by my daughter-in-law, and I wanted to give him the security that he wouldn't be forced out of our home when it comes to it.  A Paralegal came to my house and took my instructions, advising the Right of Occupation Trust (both my sons are the executors and trustees and have been appointed as my attorneys jointly and severally in Property & Finance and Health & Welfare LPAs) and drafted my Will with a reference and contact details if I have any further questions or would like to make any adjustments.

My sons get on absolutely fine and are reasonably stable financially, and the only other surviving members of my family are 2 nieces and a nephew in Australia who all have their own families and home lives.  I have no grandchildren of my own.  My younger son lives with me as a "mutually beneficial tenant" - he saves on household bills while working and studying as a bookkeeper, which I thought would be very useful if my registered Powers of Attorney needed to be used, and I have somebody who will be there for me whenever needed.  My married son is essentially impossible to get hold because he's very busy with work.  I have seen nothing to suggest they couldn't work together perfectly well as and when necessary.

As far as the house itself goes, I live in a conservation area and my house is full of character.  Aside from any potential repointing or repair to the roof I think my son is perfectly able to keep it in good shape.

Thank you for your help.

Mojisola

Hypothetical_Karen said:

My sons get on absolutely fine

I have seen nothing to suggest they couldn't work together perfectly well as and when necessary.

How will your older son cope if his wife gets upset that they aren't getting the inheritance she is expecting from you?

Will your sons' good relationship be able to withstand friction caused by your daughter-in-law?

It's possible that one of our offspring may have to move back home because of health problems.  We don't want them to be forced out of the family home immediately following our deaths but we don't think it's fair that siblings should have to wait for years before getting their inheritance.  We have written in our wills that the house sale should be delayed for a set time while the resident offspring has time to sort themselves out.  

As your younger son has reduced living costs now, he should be able to save for future accommodation and will also have half of your estate to set himself up in a new life.

Hypothetical_Karen

Thank you for your reply, Mojisola.

I can't comment on how my married son will deal with his wife, as I very rarely hear from him, but my younger son is mature enough to be able to see everything through properly.  Quite rightly, my younger son will be in a position to relocate as he wishes due to saving on household bills, but my concern is that he might be forced to move out despite my Will stating that my home will be put into a Trust.

I'm just seeing if anybody can advise of what options I have to be sure that my wishes will be properly met, having heard horror stories from friends about their relative's Will being lost or destroyed and suddenly there is a different beneficiary that they weren't expecting.

Thank you.
Karen

doodling

Hi,

To answer your original question, the safeguard that ensures your Right of Occupation trust is honoured is the fact that your sons are executors and trustees and being loyal and law abiding offspring they will follow your wishes and the law and set up the trust you have asked for.

I'm a little concerned that you aren't using a solicitor for this, they tend to be better at understanding what you want, clarifying issues and ensuring that you haven't missed anything.  The result is also likely to be less ambiguous and less open to challenge although if both of your sons support what you are doing then that won't be an issue.

From what you have said, I suspect that executing the will and setting up the trust will be something of a strain on your older son's marriage, especially as it appears it will be of no benefit to him, his wife actively hates the idea and it will take him away from the apparently small amount of time he has with his wife due to his work.  Of course, he could let your younger son do most of the work, but his wife might not let him (yes I know this is contradictory but the comment comes from experience ).

The reason I ask about the definition of "good repair and condition" is that if the daughter in law believes that the younger son has to leave the property if they do not keep it properly then your married son may come under pressure to nit-pick at every aspect of house maintenance every time they visit.  This may affect the relationship between your sons.

I still don't understand why you are favouring one son so dramatically over the other but that is your choice.

Marcon

Hypothetical_Karen said:

Hi everybody!

I'm a long time browser of MSE forums, but have never participated until now.  I hope that's ok!

This is a hypothetical question for the time-being, based on my personal fears of what I believe might be happening "behind the scenes", as it were.  I have paid a legal firm to design and write my Last Will & Testament based on my wishes after I had a meeting with them in my home, and have put a Right of Occupation Trust into it (which cost me £295!) to allow my youngest son (40 years of age) to continue living in the property indefinitely after my death, so long as he keeps it in good repair and condition, and pays all outgoings himself.  I am the sole owner of the property and while we do live together, it isn't as joint tenants (in which case the Right of Occupation Trust wouldn't be necessary) nor as tenants in common.  The trust period will cease only when my youngest son either passes away or changes his home address.  At the end of the trust period, the assets held within the trust will be shared 50/50 to my 2 sons.

My other son is married and rents a property in London, while I live in Derbyshire.  There seems to be quite a bit of tension between my youngest son and my daughter-in-law (who believes she will be inheriting my home) and, without wanting to get either of them into any kind of legal disputes or involve solicitors unnecessarily, I was wondering if anybody would be able to advise me of any safeguards to ensure the Right of Occupation Trust I have purchased will be honoured?

Thank you for any advice.
Karen

You've purchased a service, not (I hope!) an off the shelf item. £295 clearly struck you as expensive, judging by the exclamation mark, but it is on the cheap side, which is why others are flagging concerns about the fact you aren't using a solicitor. 

Do you fully understand what you've set up? I suspect not, judging by the questions you've asked. I did a bit of googling to see if I could find some sensible summaries of this sort of trust and this was a very good one in terms of explaining why you might want one/what it does: https://dm-legal.co.uk/services/right-of-occupation-trust/

Hypothetical_Karen

Thank you again Doodling.

I'll reply specifically to each point:

I trust my sons to abide by my wishes, if left to make their own decisions.  They are both experienced and mature enough to do the right thing.

The reason I chose not to use a solicitor is because my "in laws" (my now deceased husband's parents) had their Will written by a firm of solicitors that ceased trading shortly afterwards, not long before my father-in-law passed away, but his Will was never proven.  The property was still in his name 23 years after the event, when my mother-in-law needed to sell the property to relocate to a care home.  That made me, understandably, very suspicious of them.

As far as my married son goes, he has plenty of time for his wife as he works from home since the COVID-19 pandemic.  He seems to have a considerable lack of spare time for anything other than his wife (and the cinema, or restaurants) though, and I'm not willing to hurt my younger son who is always there for me to favour somebody that basically ignores me (except for when he wants money, of course!).

Thank you everybody for your help, so far.

Hypothetical_Karen

Thank you for your reply, Marcon.

I understand how the Right of Occupation Trust works, and it was explained to me very clearly by the paralegal that drafted my Will.  My primary concern was caused by friends that told me of their relatives having their Will changed so there were new, different beneficiaries to what they were expecting.

I'm just worrying, hopefully about nothing, that somebody could do the same to me.  I think the Right of Occupation Trust was a fair way to do it, rather than give the house to one son and ignore the other.

Marcon

Hypothetical_Karen said:

Thank you for your reply, Marcon.

I understand how the Right of Occupation Trust works, and it was explained to me very clearly by the paralegal that drafted my Will.  My primary concern was caused by friends that told me of their relatives having their Will changed so there were new, different beneficiaries to what they were expecting.

I'm just worrying, hopefully about nothing, that somebody could do the same to me.  I think the Right of Occupation Trust was a fair way to do it, rather than give the house to one son and ignore the other.

If you have had the position fully explained by a professional, it's worrying that 'friends' are causing concerns with their doubtless well meaning, but ill informed, speculation about what could happen. If you are worried, go back to the paralegal who drafted it and tell them exactly what has been said to you that is worrying you. It should take a matter of a minute or two (so no huge fees) for them to set your mind at rest, based on a full understanding of your situation and the trust they have put in place. 

Hypothetical_Karen

Thank you again, Marcon!

I hope it's just me being silly, and I was very confident at the time of instructing the paralegal, based on their advice, but as I've said, friends throwing horror stories at me has made me wonder.

I think my sons will do a perfectly reasonable job, if and when the time comes.

Thank you everybody for your help and advice.  I feel much more comfortable now!