50% house left in trust by late father, the other half being left to our sister

[Paul2802]

POST MOVED FROM WELCOME FORUM

Hi, my late father who was a tenant in common with my mother at the house they owned outright, left his 50% share of the house divided equally between myself, my brother and sister, and this was put into a trust created by my fathers Will.

Myself and my brother have families, are home owners, but neither of us are well off by any means!
My sister has had a rough life, is unable to work due to discrimination, was recently declared bankrupt. She was living at my sons house for about 4 years (rent free for 2 years, then my mother paid a low rent on her behalf to help with bills etc), but around the start of Covid she moved back in with our mum, which made a lot of sense. She does own a flat in London with an ex-partner, so is also a home owner, and a lodger lives there with her ex to help cover the mortgage/bills etc.... so she has a 50% interest in the flat but doesn't have to pay anything out in upkeep.

The issue now is our mother has decided to leave her 50% share of the house to our sister in her Will, and this was done entirely because she doesn't want to see my sister homeless after she dies.

Whilst I'd never see my sister homeless (hence she lived at my sons for years after a relationship breakdown), and would totally agree she should be given reasonable time to get her life sorted when our mother dies, my brother is of a completely different view. He wants her OUT of the house ASAP so that we can sell and take our share from our fathers half.

However, to be honest, I would think it completely unfair to expect my bother and I to wait until our sisters death before we are able to benefit from what was left to us by our father, particularly as our sister is the youngest and could easily live another 30+ years.

So the questions I have are;

1. Can our mother legally state in her Will that our sister can reside at the house for the remainder of her life, even though my mother's Will is only applicable to 50% of the house?
2. What chances would my brother and I have if we applied to the courts for an order to sell, bearing in mind that between us we would only own one third from my fathers side and our sister would own 4/6ths?
3. Following our mums death, let's say we all agreed for our sister to reside at the house, would my brother and I be able to charge our sister rent based on our shares in the property?

There are other complications, like who pays for the upkeep of the house, bills etc if my sister resides there, considering it's a good size 3-bed property and I doubt my sister could afford all that on benefits.

Many thanks in advance

[dslippy]

Your mother can only dispose of or control her own interest. What that interest is is controlled by the deed which originally created the tenancy in common. It might say anything (for example attaching the right to occupy to the mother's interest). It will probably say nothing, even if it exists. If nothing such was said then she can only express a wish that the daughter live tere.
The Trusts of Land and Appointment of Trustees Act 1996 provides for a court to establish upon what trusts a house is held, and to make orders accordingly. It appears to be one of the few bits of social engineering legislation which has worked.
You are right that there are always uncomfortable questions of the sort you describe which arise in these circumstances.

Your mother needs proper advice on making her will. Admitting that we do not know the documentary background, which is essential, I have my doubts that she would be advised to prepare her will in the way suggested.

[Sam101]

MOVED FROM OTHER POST

The Will would usually give a lifetime interest to your mother and before her death, the beneficiaries are unable to inherit. After all, your mother needs protection and it is only the fact that your mother's part of the house is being gifted elsewhere.

It is completely up to your mother to gift as she wishes and children should not be reliant upon their parents at any time. Your mother could allow your sister to live with her in the house and if she so wishes, can gift her part of the house to her on her death, or gift a lifetime interest, with the property eventually going to the other children. It's up to her.

You are wasting time even thinking to apply to the Court.

If your mother invited your sister to live in the house, the question of any rent could not apply until your mother dies. You and your brother own nothing at all at present. It is owned by the Trust and not the beneficiaries.

You and your brother are not obliged to help your parent financially in any way, but it would be in your own future interests to help maintain the property yourselves.

[Sam101]

ANSWER MOVED FROM OTHER POST
Yesterday, 14:13:PM
Many thanks Sam101, appreciate the comments.
Sorry if my original post lacked clarity, I'm only referring to events AFTER our mum passes, which hopefully won't be for a long time.

My father's Will has myself, my brother and mother as both executors and trustees of the Will trust. So after our mum passes, it will be down to my brother and I to close the trust, distribute his estate according to his Will, and in conjunction with distribution of my mums half of the house (following probate etc etc), we would apply to change the deeds with land registry accordingly. At that point, myself, brother and sister will all be tenants in common, of which my sister would be the majority shareholder.

"You are wasting time even thinking to apply to the Court" Are you saying that the courts would not allow my brother and I to take out our share because our mum has given a lifetime interest on 50% of the house to our sister?

"the question of any rent could not apply until your mother dies" So after our mum dies, the house has been distributed accordingly, deeds changed etc, in the event our sister remains at the house and we are unable to sell and take out our share, would my brother and I be able to request rent from our sister based on our share? So let's say the rentable value is £1200 monthly, and we collectively own 33%, we could request our sister pays £400 in total rent monthly?

[atticus]

Dslippy has given a good answer. See post 2 in this thread.

[Sam101]

YOUR REPLY PAUL
My father's Will has myself, my brother and mother as both executors and trustees of the Will trust. So after our mum passes, it will be down to my brother and I to close the trust, distribute his estate according to his Will, and in conjunction with distribution of my mums half of the house (following probate etc etc), we would apply to change the deeds with land registry accordingly. At that point, myself, brother and sister will all be tenants in common, of which my sister would be the majority shareholder.

A). Following the death of your father, the property is owned 50% by your mother and 50% by the Trust. That is not the same as you and your brothers who can not have their names on the deeds at this time,

After your mother's death, then the brothers can have their names on the deeds and the part owned by your mother will ass to whoever she has stated in her Will.

If your mum's Will gifts her half to your sister, then 50% may be owned by her and the other 50% by you and your brothers. Your mother may say in her Will what she would wish to happen regarding her daughter and the property, but until then, this is not known.

You and your brothers may come to an arrangement with your sister, but it will depend on her financial position if you are going to try and extract a rent for your part. This may come to a legal action, but the courts will rule in part, according to the wishes of your Mother and not the financial interests of the brothers. After all, the reason for the sisters help has been due to the poor positon of your sister, which your mother understands.

As to your example, do you really believe that with her present situation, your sister is in a position to pay £400 per month?

Others may feel that your action should be through the court, but do take legal advice and be guided by that advice, as taking an action that fails may involve you and your brothers in high costs without being able to move forward.

Your parents would always wish that their children are well cared for from the efforts that they have made over their lifetime. I doubt that your parents would look kindly on family disputes of this financial nature. After all, they may both have lived for a further 10 years and your inheritances would be delayed and possibly far less that they will be.

Do think carefully about family values.

[Paul2802]

Your mother can only dispose of or control her own interest. What that interest is is controlled by the deed which originally created the tenancy in common. It might say anything (for example attaching the right to occupy to the mother's interest). It will probably say nothing, even if it exists. If nothing such was said then she can only express a wish that the daughter live tere.

Thanks DSLIPPY,
The document that was set up making my parents tenants in common says;

"I, full name, herby give you notice of my desire to sever as from today the joint tenancy in equity of and in the property described in the Schedule hereto now held by you and me as beneficial joint tenants both at law and in equity so that the said property shall henceforth be vested in you and me as Tenants in Common"

The rest of the document is just names, signatures, details of the house etc. And that was signed by both my parents in 2002.

So, if I've understood correctly, my mother could leave her 50% to our sister, but would not be able to block us from claiming the small share from our fathers side?
Obviously if our sister can buy us out then that's problem resolved, but I don't think she will be able to, which means the only option would be to sell and we each take our respective shares.

Thanks again

[dslippy]

This all remains subject to open questions about your mother's intentions.
The sister would own 4/6ths of the beneficial ownership.
The Trusts of Land and Appointment of Trustees ACt 1996 provides a procedure for a judge to identify the trusts on which the land is held, and to give directions to put them into effect.
The fundamental is that the land is held for sale unless and until some alternative purpose is established. That purpose is identified when the trust is created. The purpose was therefore that it was to provide a home for the trustees. That can be complicated by a need to provide a home for any children until adulthood etc, but the mother's wishes cannot change that after the event.