'Right to occupy' clause in a Will. Is it neccessary?

[justjean]

I received help from Enaid and Peridot recently regarding my Will, which was very useful and answered my questions clearly, and to them I am extremely grateful. However, I now have another question regarding my Will which I hope can also be answered.

My husband and I are Tenants in Common, and we are both leaving our half share of the house to our own children from previous marriages. As stated in our old Wills, we wish for the survivor of us to be allowed to continue living at the property until their death. Also this will apply to any other property should they choose to move house, such as to downsize, or move nearer to their children. This was all quite simply stated in both our previous Wills (from different solicitors) i.e. the deceased's share would be 'held in trust by the trustees (executors)' until the last one of us dies.

We both need new Wills, and I am currently in the process of preparing mine, but my Will Writer is now saying that it is neccessary to put in a "right to occupy" clause, to make these wishes legal and to prevent the beneficiaries forcing a sale of the property. However, as we were each (and will be again) one of the two executors/trustees in the other's Will, I wouldn't have thought it would be that easy for a sale to be forced.

To write such a clause, they want to charge an extra £180 on top of the cost of writing the Will, which seems an exorbitant fee, but apart from that, here is my question:-
Is it is absolutely neccessary to have such a clause?

Any advice will be very much appreciated. Thank you.

[Peridot]

Re: 'Right to occupy' clause in a Will. Is it neccessary?

Hi again Justjean,
Technically yes you should have the right to reside in each other's share of the property until certain trigger events, such as death of the survivor or remarriage for example.
I note what you say about each other being the executor, however the person/people who inherit the half share of the property could force a sale if the occupier's right to stay there is not protected. The executor would not be able to prevent that as they would not be acting by that point. Basically on the first death the estate will be dealt with by the survivor of you as executor and then distributed as per your will. The legal ownership of the property then passes to the beneficiary inheriting the half share of the house. The executor then has no 'control' over what happens once the estate is distributed.
I would always recommend that the survivor's right to occupy the former matrimonial home is protected. We have to be selfish and even the happiest closest of families can come to blows and things can deteriorate quite rapidly. I would always advise you to protect yourselves and your most likely largest asset.
In short I would advise you have the right to reside/occupy included in the Wills. It may be worth shopping around for the best price for this if you have not committed to the will writer as yet. When you investigate prices from solicitors you can ask at the outset what a basic will including a right to reside would cost so at least you can find the best deal.
Some solicitors would include this in a basic will, but others may not so definitely worth shopping around if you are able to.
All the best.

[enaid]

Re: 'Right to occupy' clause in a Will. Is it neccessary?

Just to add Will Writers are not regulated so no comeback if all goes wrong, even if you are no longer around to witness it. I know there was stuff going on to get them regulated but don't think it's happened yet.
There is a society of will writers but not sure what if any power they have.

[justjean]

Re: 'Right to occupy' clause in a Will. Is it neccessary?

Thank you so much for that reply Peridot, that helps a lot. So it seems it's for the best to get the right to reside/occupy included in our wills, so that's what we'll do! You're all brilliant on here :-)

[justjean]

Re: 'Right to occupy' clause in a Will. Is it neccessary?

Thanks for your helpful input Enaid. The will writing company do have a good reputation locally, and feedback from clients is positive. They are members of one of the will writers societies, though I can't recall which right now. Even so I might have to think about this some more before commiting (if I'm not already commited having had a meeting with them already ?) :-(

[james robertson]

Re: 'Right to occupy' clause in a Will. Is it neccessary?

It is a simply thing to write 'an interest in possession' trust clause into each will so that the survivor has the right to live in the property if they want to. I wouldn't have the nerve to charge that amount or anything like it! As for no comeback, the Will writer should have Professional Indemnity insurance, but they are also correct there is no regulation yet. the group I work for is trying to join a regulator and be the first regulated group, but time will tell. my advice definitely shop around!

[justjean]

Re: 'Right to occupy' clause in a Will. Is it neccessary?

Thank you James for your input. Unfortuately it came too late as I had just instructed the will writer to go ahead. They did however, at least, say that the £180 fee would cover a clause in both our wills which is not so bad as I first thought.
I did make enquiries to a couple of solicitors, and one said they would include such a clause in a will with no extra fee, but the cost of the writing the will was a lot more expensive. And the other charged even more for this clause than what the will writer quoted.
I guess that when their basic will is a competitive price, they make their money by high charges for extra clauses etc. Swings and roundabouts I suppose.

Anyway James thank you all the same for your advice. :-)