Property ownership and life interest trust

socy

A slightly odd situation so please excuse the long post, or if it is confusing!

A deceased relative's will (let's call him John) states that their property should be held in a life interest trust with their partner (not married) being the life tenant ('Janet'). However, Janet is the only recorded owner on the land registry (Janet owned the property outright before the couple lived together). There is evidence from bank statements that John paid a considerable sum to Janet and paid for an  extension to the property. However, Janet explained that 'they hadn't got around to doing the paperwork' in terms of property ownership. Janet refuses to engage with the beneficiaries of the will (John's adult children) and she and the other executor resigned, leaving John's adult children, as the beneficiaries, to deal with everything. They engaged a solicitor who tried to access the Will File from the solicitors who drew up the will but this has been refused on the grounds of GDPR as it contains information relating to Janet. Some informal advice has been to the effect of wait until Janet dies and then claim the share of the property, but as Janet is only in her 50s this could be a long time in the future. It seems to be difficult to find a solicitor who is knowledgeable about both estates and property law! Has anyone come across anything similar? Does the will 'trump' the lack of other evidence of John's ownership of a share of the property? Thanks.

Keep_pedalling

Difficult, even if you could prove that John had a beneficial interest in the property, which would be down to a court to decide, Janet would still have the right to reside there for life so after spending a small fortune on legal costs it could be 40 years or more before John’s remaindermem would benefit.

The will does not trump the fact that she is the legal sole owner. Many wills have clauses that fail because the asset was never the donors to leave or no longer existed at the time of death.

How long ago did he fund the extension? If it was within 7 years that cause another problem if it takes his estate into IHT teretory. 

Alphatauri

If Janet owns the house outright then the provision in John’s will fails. Effectively legal ownership of the property trumps the will. Sorry. 

socy

Thanks for this. I think the accessing of the will file is crucial to proving that Janet was intending to sell John half her property - this is why the beneficiaries' solicitor was focusing on this. I was wondering if there would be a case of negligence on the part of the solicitors who drew up the wills as they allowed these wills to be made without insisting the property ownership should be tackled first. Although I appreciate this would be very difficult to do. There is not enough left in the estate to spend a small fortune on legal costs, unfortunately. The extension was within 7 years, but I don't think the IHT threshold is reached anyway. 

doodling

Hi,

I can see no sensible way in which John's beneficiaries can claim against Janet's estate in the future, the time for them to do so is now.  Certainly a claim would be near impossible if the house was sold and money spent and there is nothing to stop Janet doing that.

Janet could get married again (to a 30 year old!) and give them a life interest, sell the house and spend it all on recreational drugs, etc. etc. etc. 

Someone coming along in the future with a will with a (on the face of it) meaningless clause isn't going to get very far.

I'm not sure that there is any case against John's solicitors for negligence as there is nothing inherently wrong with a will giving away something you don't own if that is what their client asked for. It would be necessary to study their notes to see whether they mis-advised their client.

Why didn't John's beneficiaries engage the solicitor who wrote the will?  That might have cut through the GDPR stuff a little, perhaps enough to know whether legal action was worthwhile?

SeniorSam

If John'd beneficiaries can show that he paid for the extention, then there MAY be a case to clain that the intent was to put the property into joint names. However without any documentation to support this, John's beneficiaries are unlikely to prove the claim unless Janet will confirm that intent. Therefore Janet is the owner and can do whatever she wishes.

socy

'Why didn't John's beneficiaries engage the solicitor who wrote the will?  That might have cut through the GDPR stuff a little, perhaps enough to know whether legal action was worthwhile?'
That solicitor was very unhelpful, consistently ignored the beneficiaries' solicitors letters and then said they were not prepared to engage any further. All of which made me think perhaps they have something to hide! The solicitor who drew up the wills (Janet's was done at the same time) was a locum, according to their LinkdIn profile.
Janet does not seem to be particularly aware of legal issues and consistently says that it's all dealt with in her will and at one point mentioned a trust, but then said there was no paperwork. She might well confirm the intent to put the house into joint names, as she has effectively done this  informally. Perhaps worth asking her more formally to do this.

Malthusian

The beneficiaries have no recourse under the GDPR because you can't make a Subject Access Request on behalf of the dead. Janet, on the other hand, is still alive and kicking and very much protected by the GDPR. Any disclosure of her personal data to the beneficiaries would put the solicitor in hot water with the Information Commissioner and the Solicitors Regulatory Authority. With that in mind, I am not surprised that the solicitor has pulled the shutters down. 

It sounds to me like the Will was drawn up properly in the expectation that Janet would formally transfer some of the property to John. She didn't do that. That was her prerogative. It doesn't mean the Will was drawn up wrongly. Drawing up the Will differently wouldn't have made the beneficiaries better off.

Do the beneficiaries intend to sue Janet on the grounds that John had a beneficial interest in the property after paying for the extension? And paying this "considerable sum" which may or may not have been in exchange for an unknown amount of the property?

(I really struggle to understand why you would get around to handing over a considerable sum of money to your unmarried partner while not getting around to both of you signing paperwork to confirm that it is in exchange for a share of the property. Surely you either get around to both or get around to neither. All Jane has to do to fend off a claim is convince a hypothetical judge that it was a gift or for something else. Paying for the extension gives a much stronger claim to a beneficial interest in the property, even if no paperwork was done.)

*edit*

Also, even if the beneficiaries do succeed in securing a beneficial interest in the property on behalf of their deceased father, Jane will have a life interest in it anyway. With that in mind, is it worth the candle?

Jane's vague allusions to it being "dealt with in her Will" can be disregarded. The beneficiaries should assume they get nothing from her Will and be delighted if it proves otherwise. Even if she has left them something as it stands, she has more than enough life left to remarry and acquire new beneficiaries.

Linton

socy said:

'Why didn't John's beneficiaries engage the solicitor who wrote the will?  That might have cut through the GDPR stuff a little, perhaps enough to know whether legal action was worthwhile?'
That solicitor was very unhelpful, consistently ignored the beneficiaries' solicitors letters and then said they were not prepared to engage any further. All of which made me think perhaps they have something to hide! The solicitor who drew up the wills (Janet's was done at the same time) was a locum, according to their LinkdIn profile.
Janet does not seem to be particularly aware of legal issues and consistently says that it's all dealt with in her will and at one point mentioned a trust, but then said there was no paperwork. She might well confirm the intent to put the house into joint names, as she has effectively done this  informally. Perhaps worth asking her more formally to do this.

Perhaps Janet does not appreciate being harassed whilst mourning the loss of her partner. It seems from this forum that families+the gleam of a bit of gold can be a toxic mixture.