Can I sell the house?

[JetBootJack]

Hi, first of all thanks to anyone reading and (hopefully!) providing an answer for me here.

I'm the executor for my father-in-laws estate, the main asset being his home which he was a tenant-in-common with his wife, my mother-in-law (for whom I have power of attorney).
Unfortunately, my mother-in-law has now been taken into full time care, and very soon will be fully self-funding due to the value of her share of the property.

My father-in-laws share of his property has been left to his only daughter, but the first main clause of the will states the following:
'If I should die before my wife, <name>, then all my assets should be held in trust by my executors to be disposed of upon the death of my wife'.

When this clause was written, it was with the intention that the surviving partner could not have their home sold out from under them and made homeless etc. - the current scenario was not envisaged. It also seems to apply to any cash assets that he might have left (not much, but not nothing either).

The daughter is agreeable to the sale, and as PoA for my mother-in-law I have the legal power to sell her share as well, so in theory I could sell the property and divide the assets accordingly, with my mother-in-laws share going towards her health care.

However, that clause seems pretty clear, which leaves me in a bit of a pickle as to what to do.

Does anyone know if that clause has to be honoured as written given the circumstances?

PS. I have tried a few local solicitors but I'm struggling to get an appointment before the middle of January, and the bills for the care home will really kick into overdrive at the end of January.

[Amethyst]

Was the house owned jointly by your father in law and mother in law or as tenants in common ( ie did they own distinct shares each ?)

[JetBootJack]

Hi,
"the main asset being his home which he was a tenant-in-common with his wife,"

There is no mention of a percentage, so it's assumed to be 50:50.

I forgot to add, there is a clause in the will that states:-
'I have complete trust in my executors to understand and act upon my wishes, therefore any misunderstanding or dispute of this will should be referred to them for a final decision'.

I'm trying to weigh up the various weightings of obligations here. To my mind, if my mother-in-law were still living in her property (and if I wasn't her PoA) and she wanted to sell the property to move on (for example) - as executor of my father-in-laws estate I don't think it would be right to prevent her from doing so, regardless of what the will stipulates. To stick to the letter of the will, especially when I know it would go against what the original intention of that clause was, would seem wrong to me.

If that's a strong legal position then I don't see much difference between that and me selling the house to free up money for her care costs (as her PoA) as well as then being able to distribute assets from the will (as his executor). It was not the intention of my father-in-law to delay distribution of his assets, it was intended to prevent anyone selling the house and making my mother-in-law homeless (and vice versa - there is an identical clause in my mother-in-laws will, for which I am also executor).

Whilst I feel I am on strong ground both morally and ethically here, I have no idea if my understanding of the situation is legally sound - it seems like a bit of a grey area to me at the moment.

[des8]

Is there any other party in a position to dispute the will, or your interpretation of it?
If all beneficiaries agree to your decision I don't see any problem, but if there is a disowned son hiding in the undergrowth...........

Although the will states all assets have to be retained in trust until his wife passes on, that clearly was in the context of house furnishings etc being retained with the house, and any money in his accounts being there to pay for maintenance of his 50% share.
If the house is sold those requirements no longer exist, and IMO you can proceed as you see fit.

[JetBootJack]

Whilst there are no other primary beneficiaries, there is a mention that if the daughter should die before receiving her inheritance then the estate would be shared equally between three others (2 step daughters and myself).

What isn't clear is if this would mean that although the father-in-law has passed and the daughter is alive now, she has not yet actually received the bequest. Does that section about being held in trust whilst the mother-in-law is alive extend the timeline of the bequest, or does that apply at the time of death of the father-in-law?

If the latter, then there is no-one else who should be in a position to interfere, but if it's the former then two of the three would most definitely try and throw a spanner in the works.

[des8]

One of the problems with replying to requests for advice about wills on line is that rarely does one get the full story.

Now hear about subsidiary beneficiaries who inherit if a gift fails
So the daughter has to outlive the mother in law to inherit and if she doesn't her inheritance will pass to these other people.
With that clause (as expressed in your post) IMO you would be rash to distribute early.

Are there other clauses?

Are you intending to pass the handling of the estate over to a solicitor, or do you propose to diy?
Wills are (if drafted by solicitors anyway) written in archaic language where nearly every word has a specific meaning.
It is more than easy to misconstrue them and get it wrong.
If going diy have you considered an executors liability insurance?

[JetBootJack]

Sorry about the drip feed of info, it wasn't immediately clear if they would be pertinent. There are no other clauses.

What I go back to though is that if I can't sell the property, there will be no money for the health care of my mother-in-law, and as her PoA I have a responsibility to manage her estate to her benefit.

I can certainly see the catch-22 nature of the combination of clauses which were never intended to create a problem, but I need to know, legally, what has more weight.. a) managing my mother-in-laws estate so that her health care costs are met or b) following the letter of the will, even though I know it wasn't intended to be interpreted in such a manner.

I had considered diy (and insurance) but I'm seriously re-thinking that position. I've already got a lot more than I bargained for when I agreed to being PoA and executor for my in-laws.

P.S. Does the section that says any dispute of the will should be referred back to the executors carry any weight in these circumstances?

[des8]

I don't think there is any problem with selling the house, as you need to realise her share of the asset to fund the care home fees, and for all practical reasons that will mean selling the testators share.
At that point two trust funds need to be set up, one for the wife and one for the beneficiaries who survive the wife

"P.S. Does the section that says any dispute of the will should be referred back to the executors carry any weight in these circumstances?"
Yes and no! Your decisions might be suasive, but final decision would be for the courts.
So if there was a dispute, and you came to a decision which one side declined to accept, they could challenge that decision

[JetBootJack]

Thanks for your response. It helps ease my mind a little over the holidays. I'll be seeing a solicitor in the New Year to get something officially on record as to how to interpret it, but you should know you've helped reduce my stress levels

Have a good Christmas and New Year!