Help with understanding of will

stan1970

I am hoping someone can help.

I am looking at the will for my parents and one of them has passed away.

The will states in respect of their home "I devise and bequeth subject to any mortgage or mortgages thereon as a result of my death my share and interest of and in my home known as xxxxxxxx or sother such dwelling house bungalow or flat which I may own jointly with my said wife xxxxxxxxx at the time of my death (the property) to my trustees upon trust to sell the same with power to postpone the sale thereof so long as they in their absolute discretion think fit without being liable for loss.

I direct that not withstanding the trust for sale contained in this clause of my will the property shall not be sold during the lifetime my said wife xxxxxxx (provided that she shall be residing permanently therein at the time of my death) without her consent in wrting until the first of the following to happen that is her marriage his death his cohabitng with a person of either sex (but this shall not preclude normal short term visits by friends or relatives) and his ceasing to reside in the property..... it goes on to talk about maintaince.

Subject as aforesead my trustess shall hold the net proceeds of sale net rents and profits until sale of share thereof if jointly ownee hom upon trust for  and then it lists our names and addresses .

My reading of this as as my father has passed away the property is now owned by the children named in the will - is this correct?

If mum wants to move this is an issue as we now own the property. 

If the family agreed we could transfer the property back to mum and set up a new will to ensure any future share is passed on as my father wished? - but of course this would mean all the family agreeing and potentially getting less of an inheritance in the future if she bought something cheaper or say had to cover costs to move.

There is no IHT issue on the estate.

I know i need to go and get some proper advice on this but if my understanding is correct there is little point as she would not be able to move without all of the beneficiaries agreeing. 

Thanks in anticipation of everyones help 

Flugelhorn

Curious - in the first paragraph it mentions "jointly owned with my said wife" - doesn't that imply that she owns it now? Or was it held as tenants in common, when a trust is formed after death and mum and the trust are owners 

stan1970

Flugelhorn said:

Curious - in the first paragraph it mentions "jointly owned with my said wife" - doesn't that imply that she owns it now? Or was it held as tenants in common, when a trust is formed after death and mum and the trust are owners 

Thank you for such a quick reply jointly owned rather than tenants in common is my understanding.  

I do understand why it may have been set up in this way as they both have children from different marriages and no joint children - I was just expecting to see in the will some clause that allowed them to move in the future if they needed to but i cannot see this in the will 

Flugelhorn

Tenants in common would be more usual for a couple who had children from other marriages and no children in common - worth checking the Land Registry to see what the status is 

IANAL and  I know lawyers hate punctuation .. just wondering if this 

"I direct that not withstanding the trust for sale contained in this clause of my will the property shall not be sold during the lifetime my said wife xxxxxxx (provided that she shall be residing permanently therein at the time of my death) without her consent in wrting until the first of the following to happen that is her marriage his death his cohabitng with a person of either sex (but this shall not preclude normal short term visits by friends or relatives) and his ceasing to reside in the property..... it goes on to talk about maintaince."


Means: 


That it can be sold in her lifetime only  if she consents to it, otherwise it could be sold directly by the trustees if  she married / cohabited / died / moved out?

Needs to ask a lawyer!

p00hsticks

There seems to be a curious mix of pronouns in places - going by the reference to a named wife I'd have expected the bits in bold below to read as 'her' not 'his' ? were these perhaps set up as two mirror wills for husband and wife that perhaps have not been amended correctly between the two versions ?.

I direct that not withstanding the trust for sale contained in this clause of my will the property shall not be sold during the lifetime my said wife xxxxxxx (provided that she shall be residing permanently therein at the time of my death) without her consent in wrting until the first of the following to happen that is her marriage his death his cohabitng with a person of either sex (but this shall not preclude normal short term visits by friends or relatives) and his ceasing to reside in the property.....

stan1970

p00hsticks said:

There seems to be a curious mix of pronouns in places - going by the reference to a named wife I'd have expected the bits in bold below to read as 'her' not 'his' ? were these perhaps set up as two mirror wills for husband and wife that perhaps have not been amended correctly between the two versions ?.

I direct that not withstanding the trust for sale contained in this clause of my will the property shall not be sold during the lifetime my said wife xxxxxxx (provided that she shall be residing permanently therein at the time of my death) without her consent in wrting until the first of the following to happen that is her marriage his death his cohabitng with a person of either sex (but this shall not preclude normal short term visits by friends or relatives) and his ceasing to reside in the property.....

Thank you my error I was copying from my mums will and forgot to change that bit from him to her or vice versa - it says its not a mirror will at the end but they are both the same

stan1970

Thank you everyone

mattojgb

If it's jointly owned then the other spouse automatically becomes sole owner and it does not form part of the estate.

If it's owned as tenants in common then only half the house forms part of the estate. The other spouse remains owner of their half.

RAS

If they owned the house as tenants in common, the will sets up an immediate post-death interest trust. So you really do need to spend £3 checking the deeds, which may well provide clues, or hunt for a document severing the tenancy which has not been registered. 

Given the absence of joint children, I expect mum to know about this as she would also have been severing the tenancy to protect her children's interests.

mattojgb

Flugelhorn said:

Means: 


That it can be sold in her lifetime only  if she consents to it, otherwise it could be sold directly by the trustees if  she married / cohabited / died / moved out?

Needs to ask a lawyer!

I'd agree with this interpretation.

Alderbank

stan1970 said:

My reading of this as as my father has passed away the property is now owned by the children named in the will - is this correct?

In a word, no.

Was the will professionally written?

In wills the devil is in the detail. There are quite a few typos and oddities in the extract you have posted, not just the strange use of pronouns.

Jointly owned possessions (property, bank accounts, etc) pass directly to the other joint owner at death. They do not form part of your father's estate and are not normally referred to in the will. A solicitor would never write 'Subject as aforesead my trustess shall hold the net proceeds of sale net rents and profits until sale of share thereof if jointly ownee hom upon trust for...' because that is legal gobbledygook.

If the land registry entry says they were joint owners, your mother is now the sole owner of the house. If she wishes to sell it she doesn't need wills, probate or any of that stuff. If she has the death certificate of the former joint owner she could sell it tomorrow. 

If your mother's will is similar to this you should encourage her to write a new one, to ensure that her wishes will be properly carried out after her death.