Mrs wood

[Mrs wood]

Thank you if you need any more information please do not hesitate to ask thanks again Mrs wood

[Peridot]

From the wording it looks like the trustees have to accept your partner's reasonable request to sell the property. It does however stipulate that any funds he receives from the sale that are not used for the purchase should be invested and he is entitled to the income from the investment. It looks like there is not an option to 'pay' the beneficiaries at this stage only upon his death.

I assume that the property was owned 50/50 when their mother was alive so it is only her 50% share that is ultimately to be divided. Is that correct?
So the current property should be owned with the other executors as trustees?

I'm afraid I have to go out but will have a look again later and if not will post in the morning.

[Mrs wood]

Yes that's is correct my partner is now going to leave the property and continue to pay the insurance and rates on the property. Is there any thing he could do so they would agree for him to sell its only his step children who are disagreeing with him selling?

[Amethyst]

Could he sell and retain the trust as is on the new property, rather than pay them their inheritance now, if they would agree to that? He couldn't use the capital released by the downsize as it would require to be invested to provide income so the lump sum is secure for when he passes and it can pass as intended in his wife's will.

Is he intending to buy the new property in just his name?

(I've amended your previous post to initials rather than names, for your own privacy )

[Mrs wood]

Hi thanks for replying the bungalow that he is in is in his name he is going to rent a flat.

[Peridot]

Hi again,

Sorry I have been going through the previous posts again and just wanted to clarify and hopefully explain some matters which could shed light on what the step children's issue may be.

Unfortunately the terminology in this area of law doesn't help and can cause confusion so bear with me. I will try and explain it clearly.

When a couple buy a property together they can hold the legal title in a number of ways. Joint Tenants is one way where if one of the owners dies the property automatically passes to the survivor, irrelevant of any Will that is prepared as this is a joint asset that passes by survivorship. The same happens with joint bank accounts for example.

The other way to own the property together is as Tenant's in Common. This means that each of the co-owners hold a specific share of the property that they can Will to anyone they choose such as children or step children. If there is no Deed that states the couple hold unequal shares in the property eg 60/40 then the assumption is they hold equal shares so 50/50. Each individuals share can then be left to someone other than their co-owner.

If once a couple have decided to hold the property so that they can will their respective share to someone other than the co-owner it may be necessary to sever their tenancy. Basically converting the ownership from joint tenants to tenants in common. Then Wills need to be created by both parties to enable their respective share to be left to who they want. You would also usually make a provision in the Wills allowing the surviving partner to remain in the property until certain events happen such as their death or remarriage, before the beneficiaries receive their share of the 50% that has been left to them.

Couples may prepare mirror wills which are wills that basically reflect each other. So one person leaves their 50% share to who they want and the other leaves their 50% share to who they want with a provision for the survivor to remain in the property as I mention above. Of course there is nothing to either party changing their Wills at any time without the other's knowledge. This then may create a situation that when the original Wills were created was not intended and may have even lead the individuals to wish to prepare their Wills differently.

I suspect the issue here is twofold. When your partner and his wife set up the Wills it seems that they had the intention that their respective 50% share would be divided equally between their respective children upon the death of the second person. So in this situation the children and step children would each have received a 1/6th of the 50% share held by mum/step mum which would be held on trust until dad/step dad passes away at which point his 50% share would also be divided between the children and stepchildren. The whole or 100% of the property (or any replacement property moved to before he died) would effectively be divided equally between the children and step children equally so each child will effectively inherit 1/6th of the whole property value upon sale (if there are 6 children/step children).

I then get a little confused, you have indicated what your partner's Will states but is this a mirror of his wife's? If it is and he hasn't changed his Will then there is no loss for his step children, so I am unsure why they have an issue but I will come onto that in a moment. If your partner changed his Will in respect of the property then his step children may longer receive a 1/6th of the property upon his death, but a smaller share if he left his 50% to his children, for example. You can probably understand why the step children could be a little put out by this and I wonder whether they are concerned he may change his Will, hence their current behaviour.

The other issue is whether the tenancy (co-ownership) was ever severed to form a tenants in common situation, rather than a joint tenants scenario (where the property passes automatically to the survivor). You said in one of the posts that the property was in your partner's sole name, which if the property had been held as Tenants in Common would not have been the case. The legal title would be in both your partner name and the trustees (of his wife's Will) names. Or the other possibility is that when his wife died the property transfer was completed incorrectly, although this would be difficult if there was a restriction indicating the property was held as joint tenants).

It would be sensible to check the information help by HM Land Registry here: https://www.gov.uk/search-property-i...-land-registry to see exactly how the bungalow is held. For a restriction to be entered in favour of the trustees, your partner would usually have agreed to this, particularly as he is in fact one of the trustees. There are however other ways to enter a restriction but he would still have been informed, as the legal owner of the property, when this was done.

If the Wills were prepared by lawyers and they did not inform your partner and his wife that the tenancy required severing then this could be a

potential

negligence claim against the firm. Equally if lawyers dealt with his wife's estate when she died and have not dealt with the property ownership correctly again this could be a potential claim.

Aside from these points the Will of his wife, assuming the wording is the same as his Will, is clear that the survivor should be able to move provided they ask this of the trustees and that any surplus funds are invested pending his death when they would be distributed along with the sale proceeds from his newer property. If he has no intention of changing his Will then I am unsure why the other trustees are creating a situation that could well be avoided. If he has indicated he intends changing his Will, then this may be their concern. Bearing in mind there are differing numbers of children and step children on each side this could significantly impact any inheritance.

I think this is probably something he needs some face to face advice on and would suggest he takes a copy of his wife's will with him to any meeting he has and any correspondence he received concerning the previous property sale and purchase of the bungalow. He needs to explore how the property is held and also try and discuss things with his fellow trustees, reassuring them, if appropriate, that he is not changing his Will and pointing out the wording of his late wife's will allows him to request a sale (with the surplus going into investment).

Hopefully, if you've managed to get to the bottom of this post you have a slightly better understanding of the situation. Although it doesn't answer all the issues and further exploration is needed, it maybe helps explain some of the possible problems or causes of concern for the trustees.

[Mrs wood]

Thanks for reply this does make a lot of sense and I appreciate all your help my partners late wife's beneficiary is now corresponding threw a solicitor so hopefully he will be advised to agree to the sale and all will be resolved thanks again

[Peridot]

Good luck, hopefully things will go a bit more smoothly now. Here if you need our support.

[Mrs wood]

Thank you

[Mrs wood]

Hi again, I have done what you recommended me to do and, we are no further on is it possible for my partner to get equity release or any other kind of loan on his property in this situation.