**WON!!!** Widower being taken to court to obtain order to sell property!

[Diana M]

Re: Widower being taken to court to obtain order to sell property!

He contested the claim and at one point had it dismissed, however it went on an on... Eventually it just resulted in Charging Orders being granted on both him and the co-defendants properties.

Why was the original claim dismissed? And why/how was it resurrected?

If there's also a Charging Order on the 2nd Defendant's property why has the Claimant decided to only pursue one of you with an Order for Sale?

Di x

[son]

Re: Widower being taken to court to obtain order to sell property!

Hi Di,

There was holes in the numbers, however this was appealed and costs were then added. I'm not sure fighting the original case has much merit...

- I don't know why, it does feel somewhat personal! However, I understand he is within his rights to pursue either/both parties separately...

So... My mother becomes the 'Legal owner' even though the 50% is reserved for my brothers and I...
- Does this man's court order overreach the trust created by the will?

Thanks again everyone

[Openlaw15]

Re: Widower being taken to court to obtain order to sell property!

Thanks OpenLaw

So is this a 'cut and dry' way to defend against this claim?
Is this admitting liability?
How does this effect further down the line?
Would it be better to defend from a point of view that there is a 14 year old living there?

Thanks again

- - - Updated - - -

Sorry, also would interest keep accruing given that he's passed? I was under the impression the Gazette notice limits this?
- If it does keep accruing, probate showed the total estate to be £50k give or take - what would happen if the figure exceeded this? When do all the clocks stop as such...

I think arguing the security is a substantial part of your defence as this is what the court is interested in, the chargee's rights as he has the charge on the property. After this, as Amethyst alludes - the property is held on trust for your family too, so this is a part defence. Section 34, Law of Property Act 1925 creates a legal joint tenancy and beneficial interests (ie equity follows law), for your mother and family who live in the home. A legal joint tenancy is like an invisible legal seal which creates beneficial interests (it's not the same as normal beneficial joint tenancies or tenancy in common). In addition, under section 14, ToLATA you can defeat an Order of Sale by the chargee using a counter claim such as asking the Court to make an Order in your own right, ie to stay in the property. The Court under section 15, ToLATA looks at the reason for purchasing the property, and all other interests for Sale. If the property is your home then this is obviously you defence too.

[son]

Re: Widower being taken to court to obtain order to sell property!

Thanks Openlaw.

In addition, under section 14, ToLATA you can defeat an Order of Sale by the chargee using a counter claim such as asking the Court to make an Order in your own right, ie to stay in the property. The Court under section 15, ToLATA looks at the reason for purchasing the property, and all other interests for Sale. If the property is your home then this is obviously you defence too.

In your opinion would this be the most effective route?

Also, what happens with regards to interest accruing?

[Diana M]

Re: Widower being taken to court to obtain order to sell property!

In your opinion would this be the most effective route?

I'm afraid there are a few more questions which need answering before that can be decided. It's difficult and dangerous to advise without having seen the paperwork so lets get the facts as best we can first. Eventually someone will need to look at the paperwork before you can make a final decision on how to deal with this.

So here are the questions:

Who is named as the Defendant on the OfS application? Is it your mother or "The Estate of Father"?

Is your mother a co-executor of the Estate or are you the sole executor?

When did your father die (sorry to ask this but it matters).

When did you put the notice in the Gazette?

When was the original claim issued, dismissed and when was the appeal started/decided?

Was your father legally represented throughout those proceedings or was he a Litigant in Person?

What was the £12k claim for (in a nutshell)?

Do you know how to contact the 2nd Defendant if that became necessary?

I'm sorry to intrude and I can see how you would feel this application by the Claimant is personal, but it's in your late father's best interests for his wife and sons to benefit from what he would have wished them to have as set out in his Will.

Di x

[son]

Re: Widower being taken to court to obtain order to sell property!

Thanks Di, Q and A below:


Who is named as the Defendant on the OfS application? Is it your mother or "The Estate of Father"?
My mother not the beneficiaries or estate of

Is your mother a co-executor of the Estate or are you the sole executor?
My mother and I are the executors

When did your father die (sorry to ask this but it matters).
July 2014

When did you put the notice in the Gazette?
Yes, it took us a while to get to this but the 2x month window on this actually ended yesterday.

When was the original claim issued, dismissed and when was the appeal started/decided?
2008/2009

Was your father legally represented throughout those proceedings or was he a Litigant in Person?
Litigant in person

What was the £12k claim for (in a nutshell)?
The claimant and two defendants had an overdraft facilicty as part of a company they co-owned. When it went in to liquidation they were all personal guarantors. The two defendants set up an arrangement to pay £1000 pcm and after three months the claimant paid the bank in full without any notification to the two defendants. He then pursued the two defendants for his share.

Do you know how to contact the 2nd Defendant if that became necessary?
Yes

[Openlaw15]

Re: Widower being taken to court to obtain order to sell property!

Thanks Openlaw.



In your opinion would this be the most effective route?

Also, what happens with regards to interest accruing?

In law, 1) there is legal property: ie Ltd company's property, 2) personal property, and 3) security against personal property, ie property charge; or a personal guarantee. Insolvent legal company (ie Ltd) means end of any claims against the company. Personal property is not affected so personal security or property charge are still affective.

Guarantee issue

Was the charge on the property taken out before the liquidation of the company? Was your father made personally bankrupt or was it just the company that went into legal liquidation? This is an insolvency and personal guarantee legal question. If the guarantors (all 3) had a personal guarantee with the bank for an overdraft facility before said liquidation it survives the liquidation of the company, for a claim. However, one of the three settled the guarantee's bill in full, where the bank relationship was satisfied.

So, I assume the charge was taken out on all 3 personal properties (guarantor's homes) prior to the liquidation of the company, in the event that one of the guarantors would settle with the bank. is this right? Access to the guarantee's documents may be helpful here. When was the charge taken out on your family home? I am trying to understand the security against the 3 persons for the business overdraft.

Beneficial interest via property held on trust

The chargee should only be entitled to the charge plus the interest from charge date to current.

My question, has the estate been dealt with, ie have all the gifts been passed to their intended beneficiaries? If the estate is still being dealt with, the mother or you as co executors are holding the estate so potentially you or her can be named. If the Will/ estate has been distributed then the beneficiary to whom the property transfers to is the defendant. You main defence as I see it is the property is held on trust via a beneficial interest for your mother, you and the brothers. There 14 year old living there also has rights. It's not a mortgagor right to possession issue though. So, a counter claim for an Order in your own right to stay in the property is your court right: s.14, ToLATA 1996. You're not just occupiers to the property: 2002 Act, as you're proprietors so any one of you potentially has the right for a court order to stay. If the person trying to evict you were a bank (ie mortgagor) the property held on trust wouldn't benefit you as this could be over-reached by appointing another trustee: Law of Property Act 1925. In your situation though, this is a business partner with an equitable (beneficial) charge versus the interest of the family to their own home.

[son]

Re: Widower being taken to court to obtain order to sell property!

Hi OpenLaw,

I think I have perhaps given you wrong information.

The charging orders were obtained by the claimant well after the original problem arose.
The claimant in this case had settled the banks debt in full and is now suing my father and ex works partner for their 2/3rds plus interest. (He has obtained charges on both defendants properties)
The charges have nothing to do with a bank and the bank never secured charges against the properties.

The estate has been dealt with. He had literally nothing bar the equity in the house. Probate has been signed off and the Gazette Notice period to our knowledge has ended. (50k was the figure on probate)

The beneficiaries are myself and two brothers, so I assume the court case should be against us?
- Do the wishes of the will stop the court from being able to grant an order for sale as his wishes were for her to have use of the property for her lifetime?

Thanks again.

[Diana M]

Re: Widower being taken to court to obtain order to sell property!

The claimant in this case had settled the banks debt in full and is now suing my father and ex works partner for their 2/3rds plus interest
.

What interest rate has he been charging all these years and what has he been basing his calculations on? Presumably that is in the CCJ.

Di

[son]

Re: Widower being taken to court to obtain order to sell property!

Hi Di,

8% from the date of the judgement. I don't see an issue with that?

Thank You

[Openlaw15]

Re: Widower being taken to court to obtain order to sell property!

Hi OpenLaw,

I think I have perhaps given you wrong information.

The charging orders were obtained by the claimant well after the original problem arose.
The claimant in this case had settled the banks debt in full and is now suing my father and ex works partner for their 2/3rds plus interest. (He has obtained charges on both defendants properties)
The charges have nothing to do with a bank and the bank never secured charges against the properties.

The estate has been dealt with. He had literally nothing bar the equity in the house. Probate has been signed off and the Gazette Notice period to our knowledge has ended. (50k was the figure on probate)

The beneficiaries are myself and two brothers, so I assume the court case should be against us?
- Do the wishes of the will stop the court from being able to grant an order for sale as his wishes were for her to have use of the property for her lifetime?

Thanks again.

No, i was thinking that the bank had the personal guarantee actually, as this is usually the case with banks, but that was paid off by the claimant so now he's coming after the 2 defendants including your father's estate. Why did he settle the personal guarantee in full? Was there a contract with your father and the other defendant to pay back the 2/3s that the claimant paid other than said those same being personal guarantors. What am asking is why the payments changed from £1000 per month each to the claimant paying it off. That was not the agreement so why did he pay it all at once? The claimant seemingly moved the goal posts by paying the personal guarantee off. How did he get the charging order in the first place on the two defendant's properties??? If someone agrees to pay it off, that is change of terms from a previous agreement. As the estate has been dealt with, the defendant should be your mother as she has the beneficial interest to the property. For instance your mother's interest is for all her life.

[Diana M]

Re: Widower being taken to court to obtain order to sell property!

i was thinking that the bank had the personal guarantee actually, as this is usually the case with banks, but that was paid off by the claimant so now he's coming after the 2 defendants including your father's estate. Why did he settle the personal guarantee in full? Was there a contract with your father and the other defendant to pay back the 2/3s that the claimant paid other than said those same being personal guarantors. What am asking is why the payments changed from £1000 per month each to the claimant paying it off. That was not the agreement so why did he pay it all at once? The claimant seemingly moved the goal posts by paying the personal guarantee off. How did he get the charging order in the first place on the two defendant's properties??? If someone agrees to pay it off, that is change of terms from a previous agreement.

That's where my thoughts are heading

Sometimes one has to go back to the beginning before you can tackle the end.

It's a bit late (but possibly not too late) to 'question' the CCJ.

This is why I've been asking questions to see whether the 2nd defendant could still be potentially 'in the frame' when it comes to challenging the Order For Sale regardless of any 'side deal' with the Claimant.

Di

[Openlaw15]

Re: Widower being taken to court to obtain order to sell property!

Hi OpenLaw,

I think I have perhaps given you wrong information.

The charging orders were obtained by the claimant well after the original problem arose.
The claimant in this case had settled the banks debt in full and is now suing my father and ex works partner for their 2/3rds plus interest. (He has obtained charges on both defendants properties)
The charges have nothing to do with a bank and the bank never secured charges against the properties.

The estate has been dealt with. He had literally nothing bar the equity in the house. Probate has been signed off and the Gazette Notice period to our knowledge has ended. (50k was the figure on probate)

The beneficiaries are myself and two brothers, so I assume the court case should be against us?
- Do the wishes of the will stop the court from being able to grant an order for sale as his wishes were for her to have use of the property for her lifetime?

Thanks again.

Show us a copy of the Will and we can check the terms to see exactly what interests there are in terms of gift/ other, and who were the immediate beneficiaries. For life means the first beneficiary is your mother so she has the beneficial ownership of the property until she dies. You and the two other brothers are in remainder so your rights are successor type in that you and your brothers acquire the beneficial interests to the property after your mother dies. So, for this reason and given the estate has been distributed, the claim is against your mother as she currently has the property's interest, ie 'for all of her life.'

[Openlaw15]

Re: Widower being taken to court to obtain order to sell property!

Thanks Both! I really appreciate your time and knowledge.

- Yes the application is for Order for Sale.

- He contested the claim and at one point had it dismissed, however it went on an on... Eventually it just resulted in Charging Orders being granted on both him and the co-defendants properties.

- The debt reached £30k approx, due to costs being added which was another 11k and then interest since 2009.

- There appear to be no terms with the second defendant, and they have now stopped paying the claimant. In my knowledge a figure of 30k was agreed and she was paying them... and then simply stopped.

- In terms of the trust, yes this was is in the Will and the Land Registry Title appears to have a new restriction at the end relating to this.
'RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by and order of the court.'

- The property value is approx 370k and has a mortgage of 216k so there is equity there now.

- Please see below the claimant's particulars that came with the claim:

CLAIM NO.

IN THE COUNTY COURT AT XXXXXXX
BETWEEN:

CLAIMANT
-and-
DEFENDANT

CLAIMANT’S EVIDENCE IN
SUPPORT OF HIS CLAIM
MADE PURSUANT TO PART 73.10
OF THE CIVIL PROCEDURE RULES
AND PRACTICE DIRECTION 73


1. The Claimant on 14 July 2009 obtained a Final Charging Order against the property XXXXXXX, registered at HM Land Registry under Title No. XXXXX and copies of the Final Charging Order and the Official copy of register of title are exhibited hereto marked XXX and XXX respectively.
2. The Claimant is seeking an order for sale of the above named property.
3. The Claimant is able to identify the following Creditors registered with priority on the Charges Register of Title No. XXXXX
(i) National Westminster Bank plc
(ii) Central Trust Ltd
4. The Claimant does not know the amounts owed to either of the abpve named Creditors.
5. Although it is unknown what the estimated sale price of XXXXXXX would reach, it is estimated that the property would sell for a sum in the region of £371,000 and £415,000.
6. The Defendant is by virtue of survivorship the sole proprietor of the property and to the best of the Claimant’s knowledge the Defendant is in possession of the said property.
7. The Claimant seeks to enforce the Final Charging Order in respect of XXXXXX by way of the property being sold.
8. To date the sum due and owing to the Claimant is £34,147.89 and continues to accrue at the daily rate of £4.78

STATEMENT OF TRUTH

I believe that the facts contained in this statement are true.
Signed and Dated.

It would be helpful to see a copy of your property's land register. The other thing if the property has passed to your mother, she may have more protection if she puts her name on the deed: legal interest, ie normally watertight. If you mother has a legal interest to the property, she will be holding the legal interests and beneficial interests for her and your family. Presently, the situation is your mother has beneficial ownership and the chargee has beneficial charge interest. It would costs a few hundred pound for a legal interest. I do not understand why your lawyer - if you have one - did not tell you to do this already. The chargee only has a beneficial interest so there should be no reason why a beneficial charge should stop your mother putting the property on a deed. As equity follows the law, and not law follows equity. If your mother gets the property transferred by deed (creating a legal interest) your mother will also be a legal trustee with her own powers, I believe.

[son]

Re: Widower being taken to court to obtain order to sell property!

Good Morning All!

- I have typed up the Will, Land Registry and an ordered Timeline for your perusal. I truly appreciate your help with this. Thank You. Here we go...

Complete Timeline of Events

2008

08^th January 2008
- General Form of Judgement or Order
o 1. Judgement against First Defendant on admission for £5292.94
o 2. Judgement against Second Defendant on admission for £5292.94
o 3. Case management conference to be adjourned to 21^st February 2008
o 4. If claimant applies for summary judgement as to the balance of the claim, the same shall be listed for 1 hour and the Case Management Conference shall be adjourned to be heard immediately thereafter.
o 5. Costs in case.

20^th Feburary 2008
- Application Notice
o Intend to apply for an order that – Judgement be entered against each defendant pursuant to CPR part 24 in the sum of £7882.92 less £5292.94 (for which Judgement was entered on 3^rd January 2008) total £2589.98 together with interest on the sum of £7882.92 at 8% per annum from 28^th June 2004 to 28^th February 2008 namely 2312.06 and continuing at a daily rate of £1.73
o Because – the defendants have no real prospect of succeeding in defending the claim.

27^th March 2008
- Letter from Claimants Solicitor
o ‘We write further to our letter to you of 20^th February 2008. As you are aware there is now an supplication for summary judgement in relation to the remainder of our clients claim. In the meantime there is a judgement against both you each for £5292.94 and that does not include the interest that has accrued on that sum since it was paid for, nor indeed, interest that increases at some £1.16 a day.

22^nd April 2008
- Statement of Costs (summary assessment)
o Grade A Solicitor @ £195 per hour
o Total £9,944.13

May 2008 (Exact Date Unsure)
- Major Heart Attack followed by 10 day hospital stay and 1^st stent. Returned home for 3 weeks before going back to hospital for 2^nd stent. Very unwell and unable to do anything during this period and the following month. Started on 3 or 4 different medications. Underwent a 6 week rehabilitation course.
- He was sporadically well after this, but having been diagnosed with chronic heart disease he had to slow down and was often not at his best.

1^st May 2008
- General Form of Judgement or Order
o Before District Judge sitting at County Court – Upon hearing the Counsel for the Claimant and the Defendant in Person IT IS ORDERED THAT Application dated 20 February is dismissed.

1^st May 2008
- Notice of Allocation to the Fast Track
o DJ ordered that
o 1. The claim is allocated to the Fast Track
o 2. Each party give standard disclosure by list on or before 13^th May 2008
o 3. Copy documents be supplied within 7 days of a written request.
o 4. Each party to serve on every other party witness statements as to fact by exchanging the same on or before 9^th June 2008.
o 5. Action listed for trial before either District or Circle Judge at Trial Centre on trial window beginning 18^th August 2008 with estimated time of 4hrs.
o 6. Listing questionnaires to be filed on or before 20^th June 2008.

23^rd May 2008
- Letter from Claimants Solicitor
o We write with regard to interim judgement against you dated 3^rd January 2008.
o In relation to this, we are instructed that if payment is not received we are to issue bankruptcy proceedings. We wish to put you on notice that our client has appealed the decision of DJ not to grant summary judgement for the remainder of the claim and interest with costs.

3^rd July 2008
- Letter from Claimants Solicitor
o We note that we have not received any monies from either defendant.
o In the circumstances we are instructed now to serve a Statutory Demand upon you and we enclose the same herewith.
o If payment is not forthcoming we will have no alternative but to petition for your bankruptcy.

- Statutory Demand for £5292.94

11^th August 2008
- Letter from Claimants Solicitor
o We confirm receipt of cheque from 2^nd Defendant – As you will appreciate this was only the judgement sum and not the interest which has accrued at 8% since the date of judgement. A further £243.32 is due.

27^th August 2008
- Letter from Claimants Solicitors
o We enclose our schedule of costs
- Statement of Costs
o Total - £11,344.89
- Bundle Index
o 1. Sealed copy of the order being appealed
o 2. Copy of the Skeleton argument
o 3. Note of judgement of hearing 22^nd April 2008
o 4. Claim Form
o 5. Any application notice relevant to the subject of the appeal
o 6. Letter produced at hearing of 22^nd April 2008 by First Defendant
§ (Full copies available in PDF if requested guys…)
§ A lot appears to go on in this section and the defence does appear strong…

28^th August 2008
- General Form of Judgement or Order
o Upon hearing counsel for the claimant and upon reading letters dated 22^nd April 2008, 26^th August 2008 and 27^th August 2008 from the Defendants for the defendants neither attending nor being represented.
o It is ordered that:
§ 1. The Appeal be allowed.
§ 2. There be a summary Judgement entered against the first defendant in the sum of £2589.98 plus interest in the sum of £2623.46.
§ 3. There be a summary judgement entered against the Second defendant in the sum of £2589.98
§ 4. The defendants pay the costs of the claimant in the sum of £11344.89

15^th October 2008
- Letter from the Claimants solicitors
o Apologising for small maths error
o Giving a new total owing figure of £16558.33
o No alternative but to apply for Charging Orders on both defendants properties

2009

22th January 2009
- Interim Charging Order
o Before District Judge – they have considered the application of the claimant and:
§ 1. The amount now owing under the judgement or order is £16558.33
§ 2. The judgement debtor is the owner of, or has a beneficial interest in the asset described below. (I.e 1x each to the defendants home addresses)

4th February 2009
- Letter from Claimants Solicitor
o We enclose herewith the Interim Charging Orders

6^th February 2009
- Letter from Claimants Solicitor
o We enclose herewith the Interim Charging Orders

17^th March 2009
- Letter from 2nd Defendant to Claimants Solicitors
o I write concerning an application for a charging order against my jointly owned property with a view to recovering the judgement monies in the above case which has been dogged by errors of arithmetic. I paid in full the original Judgement against me and I understand that 1^st Defendant applied to the court for a repayment plan.
o Both defendants offer a combined total of £500 pcm to be reviewed annually

1^st April 2009
- General Form of Judgement or Order
o Before DJ – Upon hearing a solicitor for the Claimant and the defendant not appearing. It is ordered that the application for a charging order be adjourned to be heard on 18^th May 2009

18^th May 2009
- Final Charging Order
o DJ heard a representative for the claimant and the non-attendance of both defendants – The court orders that:
§ 1. The charge created by the order made on 22^nd January 2009 shall continue
§ 2. The interest of the defendant in the asset described in the schedule below stand charged with payment of the sum of £16558.33 the amount now owing under a judgement or order given on 28^th August 2008 together with any further interest becoming due.
§ 3. The costs are to be added to the Judgement

A few failed attempts using High Court Enforcement officers were used at this point however no monies were collected from either defendant.
2013

November 2013
- Minor Heart Attack followed by 8 day hospital stay – Angiogram revealed no cause for further stenting or medication.

December 2013
- Contracted MRSA type virus – should have been hospitalised but remained at home. Very unwell for around 2 weeks.

2014

3^rd July 2014
- Final heart attack which caused his death.

2^nd October 2014
- Notice of Change of Solicitor Served

6^th November 2014
- Probate Completed in the High Court of Justice

2015

23^rd January 2015
- 2^nd Defendant agrees a repayment plan and a settlement figure of £30,000
- Payment of £8,000 was made 1^st March 2015
- Payments of £916.67 per month where then paid 3x times before 2^nd Defendant stopped paying.
- To date the 2^nd defendant insists she has paid £10,500 or the £30,000 agreed as well as the original £5,000 odd.

2016

26^th June 2016
- Notice of Hearing
o Claimant v. New 1^st Defendant (Wife of Deceased First Defendant)
Claimants Evidence in Support of his Claim made pursuant to part 73.10 of the civil procedure rules and practice direction 73:
1. The Claimant on 14^th July 2009 obtained a Final Charging Order against the property – registered at HM Land Registry under title 999999. Copies of final charging order enclosed.
2. The claimant is seeking an order of sale of the above mentioned property.
3. The Claimant is able to identify 2x other charges on the charges register with priority.
4. The Claimant does not know the amounts owed to either of the above creditors.
5. It is unknown however we estimate the property to be worth between 371,000 and 415,000
6. The defendant is by virtue of survivorship the sole proprietor of the property – ADDRESS – and to the best of the Claimants knowledge the Defendant is in possession of the said property.
7. The Claimant seeks to enforce the Final Charging order in respect of ADDRESS by way of the property being sold.
8. To date the sum due and owing to the claimant is £34,147.89 and continues to accrue at the daily rate of £4.78

July 4^th 2016
- End of 2x Month Gazette Notice to Creditors (Late putting it in)


----------------------------------------------------------------------------------------------------------------------

LAST WILL AND TESTAMENT
OF
XXXXXXXXX
28/11/2013


Table of Contents
PART 1 – OPERATIVE PROVISIONS
1. Appointment of Executors
2. Interpretation
3. Appointment of Guardians
4. Funeral Wishes
5. Life Interest
6. Administration of my Estate
7. Transfer to Trustees
8. Residuary Gift
9. Survivorship Provision
10. Extended power of maintenance
11. Extended power of advancement
12. Trustees’ and Executors’ powers
13. Exclusion of Trusts of Land and Appointment of Trustees Act 1996, s 11(1)

PART 2 – INTERPRETATION
14. Definitions and construction
Testimonium and attestation



I, XXX X XXXXXX of XXXXXXXXXXXX revoke all my former wills and codicils and declare this to be my last will (‘my will’).

PART 1 – OPERATIVE PROVISIONS

1.Appointment of Executors
I appoint my spouse XXXXXX XXXXXX and my sons XXXXX XXXXX of XXXXXXX and XXXXXXX of XXXXXXX to be the Executors of my Will.

2.Interpretation
I declare that my Will, where the context admits, the definitions and rules of construction contained in Part 2 shall apply.

3.Appointment of Guardians
If my said spouse shall predecease me then I appoint my said sons XXXXX and XXXXX as testamentary guardians of my son XXXXX if he shall be a minor at my death.

4.Funeral Wishes
I desire that my body shall be buried.

5.Life Interest
5.1 I give my House free of inheritance tax, to the Trustees to hold upon the following trusts.
5.2 The income of the Property Fund shall be paid to the Life Tenant during her lifetime.
5.3 The Trustees may at any time or at times during the Trust Period if they have sold the Property, and if and to the extent that they have in their absolute discretion determined that the value of the Property Fund exceeds what is required to meet the anticipated needs of the Life Tenant, terminate the interest in possession of the Life Tenant in the whole or any part of the Property Fund and hold the Property Fund or that part upon the trusts declared in sub-clause 5.6.
5.4 I declare that, until the sale of the Property or the earlier death of the Life Tenant, the following conditions shall apply.
a. The Trustees shall allow the Life Tenant to reside in the Property
b. If at any time the Life Tenant shall so request in writing, the Trustees shall sell the Property and shall apply the whole or any part of the Property Fund in the purchase of another property whether freehold or leasehold, but if leasehold having not less than 75 years unexpired, and shall hold the same upon the trusts contained in this clause.
c. No rent shall be paid
d. The Life Tenant shall be responsible for the rates and all other outgoings on the property.
e. The Life Tenant shall keep the Property in as good repair and condition as it shall be at my death.
f. The Life Tenant shall insure and keep insured the Property in the names of the Trustees, for such cover, in such sum and with such insurance company as the Trustees in their discretion think fit.
5.5 I express the wish, but without imposing any binding trust or legal obligation, that the Trustees shall not sell the Property without the written consent of the Life Tenant.
5.6 Subject as above, the Trustees shall hold the capital and income of the Property Fund for such of my said sons XXXXX, XXXXXX and XXXXX as shall survive me on attaining eighteen years of age and if more than one of them in equal shares absolutely BUT IF any son of mine shall die in my lifetime or before attaining a vested interest leaving a child mor children who shall attain the age of eighteen years, then such child or children shall take in equal share of the Property Fund which such son of mine would otherwise have taken.
5.7 I declare that all sums secured on my House, whether by way of mortgage or otherwise (save as discharged by any policy of life assurance given as security for this purpose), and all interest due at my death, shall be paid and discharged out of my Estate, in exoneration of the Property Fund.

6.Administration of my Estate
My Executors shall hold my Estate upon trust to pay, discharge or provide for my debts, funeral, testamentary and administration expenses and to give effect to legacies.

7.Transfer to Trustees
Subject to the trusts declared above, my Executors shall transfer the Trust Fund to, or so as to be under the control of the Trustees, to be held upon the trusts and with and subject to the powers and provisions of my Will.

8.Residuary gift
8.1 The Trustees shall hold the Trust Fund upon trust for my said spouse absolutely.
8.2 If my said spouse shall fail to survive me the Trustees shall hold the Trust Fund upon trust for such of my said sons xxxxx, xxxxx and xxxxxx as shall survive me on attaining eighteen years of age and if more than one then in equal shares absolutely.
8.3 If any son of mine shall die in my lifetime or before attaining a vested interest leaving a child or children who shall attain the age of eighteen years, then such child or children shall take in equal shares the share of the Trust Fund which said son of mine would otherwise have taken.

9.Survivorship Provision
9.1 Every person who would otherwise benefit under my Will but who fails to survive me by one calendar month shall be treated for the purposes of my Will (but not for the purposes of clause 1) as having died in my lifetime.
9.2 The provisions of sub-clause 9.1 shall not apply in relation to any gifts to or for the benefit of my spouse if I and my spouse shall die in circumstances where s 184 of the Law of Property Act 1925 shall treat the younger as surviving the older.

10.Extended power of maintenance
The statutory powers to pay or apply income for maintenance, education or benefit shall apply but so that those powers shall be exercisable at the absolute discretion of the Trustees and free from the obligation to apply part only of the income for those purposes where other income is available.

11.Extended power of advancement
The statutory provisions for advancement shall apply but so that the power of advancement shall extend to the whole rather than one half of the share or interest of the person for whose benefit the advancement is made.

12.Trustees’ and executors’ powers
12.1 Without prejudice to all statutory powers and immunities the Standard Provisions of the Society of Trust and Estate Practitioners (First Edition) shall apply:
a. To the Trustees in relation to the Trust Fund and the Property Fund; and
b. To my Executors in relation to my Estate as if all references to the Trustees a Trustee and the Trust Fund were references to my Executors and executor and my Estate
With the deletion of paragraph 5 and sub-paragraph 9(3)
12.2 No power conferred on the Trustees or my Executors shall be exercised so as to conflict with the beneficial provisions of my Will or with any prior exercise of a power.
12.3 Prior to the completion of the administration of my Estate my Executors shall have powers conferred on the Trustees by clause 5 and clauses 10 and 11.
12.4 When in the management or administration of the Trust Fund or other transaction it is in the opinion of the Trustees expedient but the same cannot be effected by reason of the absence of any power for that purpose conferred on the Trustees by my Will or by law the Trustees may by deed confer on themselves either generally or in any particular instance the necessary power for the purpose and on the execution of such deed the Trustees shall have such power as if it had been expressly conferred on them by my Will.

13.Exclusion of Trusts of Land and Appointment of Trustees Act 1996, s 11(1)
Section 11(1) (trustees’ duty to consult beneficiaries) of the Trusts of Land and Appointment of Trustees Act 1996 shall not apply to the trusts contained in my Will.


PART 2 – INTERPRETATION

14 Definitions and construction
14.1 ‘my Executors’ shall mean the persons appointed by clause 1 or any other persons who act as my personal representatives.
14.2 ‘my Estate’ shall mean:
a . all my property of every kind, wherever situate;
c. All property of every kind, wherever situate, over which I have a general power of appointment; and
d. The money, investments and property from time to time representing the above.
14.3 The Trustees shall mean my Executors or the trustees for the time being of the Trust Fund and any settled legacy.
14.4 The Trust Fund shall mean:
a. My Estate, after the payment of my debts, funeral, testamentary and administration expenses and legacies;
b. All money, investments or other property paid or transferred by any person to, or so as tobe under the control of, and, in either case, accepted by the trustees as additions;
c. All accumulations (if any) of income added to the Trust Fund; and
d. The money, investments and property from time to time representing the above.
14.5 shall mean the period ending on the earlier of:
a. The last day of the period of 125 years from the date of my death, and
b. Such date that the Trustees shall at any time specify by deed or later than a date previously specified.
14.6 ‘Interest in possession’ shall have the meaning it has for the purposes of the Inheritance Tax Act 1984.
14.7 ‘person’ shall include a body of persons, corporate or unincorporated
14.8 ‘my House’ shall mean all my interest in XXXXX aforesaid or any other property as I may own and occupy as my principal house or flat at my death.
14.9 The ‘property’ shall mean my house or any interest in any house or flat purchased by the Trustees in pursuance of the provision of clause 5.
14.10 The ‘Property Fund’ shall mean:
a.The Property;
b.All accumulations (if any) of income added to the property Fund; and
c.The money, investments and property from time to time representing the above.
14.11 The ‘Life Tenant’ shall mean my said spouse XXXXXX
14.12 References to any statutory provision shall include any statutory modification or re-enactment of such provision.
14.13 References to the children, grandchildren and issue of any person shall include his children, grandchildren and remoter issue, whether living at my death or born after it, and whether legitimate, legitimated, illegitimate or adopted.
14.14 Words denoting the singular shall include the plural and vice versa
14.15 Words denoting any gender shall include both the other genders.
14.16 The clause headings are included for reference only and shall not affect the interpretation of my Will.

For the avoidance of any doubt this is the last clause of this my Will and is followed by the Testimonium and Attestation on the next page.

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Official Copy of register of title
Current as of 01 June 2016

A: Property Register

1. (15.10.1962) The freehold land shown edged with red on the plan of the above title filed at the registry and being (ADDRESS)

2. There are excluded from this registration the mines and minerals excepted by the Conveyance dated 17 October 1899 referred to in the charges register in the following terms and the land is also subject to the following ancillary powers of working:
“Excepting and reserving out of the assurance hereby made all mines and minerals under the said piece or parcel of land at or beyond a depth of three hundred feet from the surface thereof and also full right and liberty to get win remove and carry away the same mines and minerals by any ordinary method commonly employed in mining operations but so that no disturbance or damage is done to the surface.”

B: Proprietorship Register

1. (16.07.2002) PROPRIETOR: FATHERS NAME and MOTHERS NAME of ADDRESS

2. (16.07.2002) The price stated to have been paid on 28^th June 2002 was £XXX.

3. (16.07.2002) The Transfer to the proprietor contains a covenant to observe and perform the covenants referred to in the Charges Register and of indemnity in the respect thereof.

4. (16.07.2002) RESTRICTION: Except under an order of the register no disposition by the proprietor of the land is to be registered without the consent of the proprietor of the charge dated 28 June 2002 in favour of National Westminster Bank PLC referred to in the Charges Register.

5. (28.11.2007) RESTRICITON: No disposition of the registered estate by the proprietor of the registered estate is to be registered without a written consent signed by the proprietor for the time being of the Charge dated 22 November 2007 in favour of Central Trust Limited referred to in the charges register.

6. (29.02.2008) RESTRICTION: No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyance that written notice of the disposition was given to Commercial First Business Ltd being the person with the benefit of an interim charging order on the beneficial interest of FATHERS NAME made by the Southampton County Court on 15 February 2008.

7. (15.02.2009) RESTRICTION: No disposition of the registered estate, other than a disposition by the proprietor of any registered charge registered before this entry of this restriction, is to be registered without a certificate signed by the applicant for registration of their conveyance that written notice of the disposition was given to Hallett & Co being the person with the benefit of a charging order on the beneficial interest of FATHERS NAME made by the Ashford County Court on 3^rd April 2009

8.(29.06.2009) RESTRCITION: No disposition of the registered estate, other than a disposition by the proprietor of any registered charge registered before the entry of this restriction, is to be registered without a certificate signed by the applicant for registration or their conveyance that written notice of the disposition was given to CLAIMANT being the person with the benefit of an interim charging order on the beneficial interest of FATHERS NAME made by the Southend Court on 14^th July 2009.

9.(02.10.2009) RESTRICTION: No disposition of the registered estate, other than a disposition by the proprietor of any registered charge registered before the entry of this restriction, is to be registered without a certificate signed by the applicant for registration or their conveyance that written notice of the disposition was given to CLAIMANT being the person with the benefit of a final charging order on the beneficial interest of FATHERS NAME made by the Southend County Court on 14 July 2009.

10. (23.06.2014) RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.


C: Charges Register

1. A conveyance of the land in this title dated 17 October 1899 made between (1) The General Property Trust Limited (Vendors) and (2) Henry Armand Cowan (Purchaser) contains covenants details of which are set out in the schedule of restrictive covenants hereto.

2. (16.07.2002) REGISTERED CHARGE dated 28 June 2002 to secure the moneys including the further advances therein mentioned.
NOTE: The proprietor of this charge is obliged to make further advances in accordance with the mortgage terms and conditions.

3. (02.11.2012) Proprietor: NATIONAL WESTMINSTER BANK PLC (Co Regn. No. 929027) of Mortgage Centre, P.O. BOX 12201, 7 Brindley Place, Birmingham B2 2NA

4. (28.11.2007) REGISTERED CHARGE dated 22 November 2007.

5. (18.12.2015) Proprietor: CENTRAL TRUST LIMITED (Co. Regn. No. 7020381) of Cassiobury House, 2^nd Floor, 11-19 Station Road, Watford, Herts WD17 1AP

END of Register

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We have also applied for an adjournment on the 27th July as we need time to gather a defence. Hopefully this is granted.