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Benificial Occupier And Related Issues
My queries involve a will, written in 1996, effective from 2013, with items held in trust:
There are 2 executors/trustees – a local solicitor and the ultimate beneficiary (MW), son of the deceased (LW).
MW inherited some items immediately, but the will provides for LW’s former partner (MF) to remain in the house and have the use of it and its contents, as a beneficial occupier, on condition she meets the costs of outgoings, repairs and insurance.
This situation is to remain until MF: vacates the house, gives written consent, dies, or fails to satisfy the conditions of beneficial occupation, when the house and contents revert to the estate and pass to the ultimate beneficiary.
The will also says MF inherits the residue of personal chattels, as defined in the Administration of Estates Act 1925, S55(1)(x), but excluding items which are part of the contents of the house and garden.
A year after the will became effective, the solicitor trustee wrote to MF to advise that trust administration costs are usually minimal and split between her and the ultimate beneficiary MW. She was not asked to sign an authority agreeing this arrangement.
Subsequently there have been ongoing disputes as to who owns what. MF has been put on notice that she cannot remove anything from the property. MW has appropriated items and locked them away. When MF vacates the property, arguments will ensue about what is included in the residue of personal chattels and what falls under contents. It is unlikely this situation will be easily resolved.
In consequence of the disputes the solicitor is now pursuing much increased fees, with the bulk of the charges due from MF because she has challenged MW’s actions.
MF is an elderly woman with dementia and her son has power of attorney.
Questions
Q1 How can the estate solicitor represent both parties involved in a dispute?
Q2 Can legal expenses be incurred without signing a mandate?
Q3 How can MF ensure she keeps her personal belongings and the residue of personal chattels, as distinct from house contents? Some of the contents have been bought by her since her partner died. Some were jointly owned.
Q4 Is the ultimate beneficiary of the estate (MW) allowed to enter the property, without MF’s permission, and remove any items without MF’s permission?
There are 2 executors/trustees – a local solicitor and the ultimate beneficiary (MW), son of the deceased (LW).
MW inherited some items immediately, but the will provides for LW’s former partner (MF) to remain in the house and have the use of it and its contents, as a beneficial occupier, on condition she meets the costs of outgoings, repairs and insurance.
This situation is to remain until MF: vacates the house, gives written consent, dies, or fails to satisfy the conditions of beneficial occupation, when the house and contents revert to the estate and pass to the ultimate beneficiary.
The will also says MF inherits the residue of personal chattels, as defined in the Administration of Estates Act 1925, S55(1)(x), but excluding items which are part of the contents of the house and garden.
A year after the will became effective, the solicitor trustee wrote to MF to advise that trust administration costs are usually minimal and split between her and the ultimate beneficiary MW. She was not asked to sign an authority agreeing this arrangement.
Subsequently there have been ongoing disputes as to who owns what. MF has been put on notice that she cannot remove anything from the property. MW has appropriated items and locked them away. When MF vacates the property, arguments will ensue about what is included in the residue of personal chattels and what falls under contents. It is unlikely this situation will be easily resolved.
In consequence of the disputes the solicitor is now pursuing much increased fees, with the bulk of the charges due from MF because she has challenged MW’s actions.
MF is an elderly woman with dementia and her son has power of attorney.
Questions
Q1 How can the estate solicitor represent both parties involved in a dispute?
Q2 Can legal expenses be incurred without signing a mandate?
Q3 How can MF ensure she keeps her personal belongings and the residue of personal chattels, as distinct from house contents? Some of the contents have been bought by her since her partner died. Some were jointly owned.
Q4 Is the ultimate beneficiary of the estate (MW) allowed to enter the property, without MF’s permission, and remove any items without MF’s permission?
Answers
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oo-er HI Thugu - you well ?
Tried to do this earlier on but it got wiped
Barmaid will be along later
Q1 - the leading case is here
http://
Australian tax case that applies in the UK - the property after the death of a testator resides in the executor - but then after disposal he may have other duties administering the resulting trusts that arise from the will. - so in short yes he can as he really is representing the interests of the now dead testator.
Q2 they will have done ( agreed ) under the original will - and it is also allowed by the Trustee Act 2013. - dont have a solicitor as an exec ! You have read this before.
Q3 inventories and receipts - and yes fertile grounds for pointless quarrelling - s/o who is becoming demented insisting that shiny gew gaws in the house are hers because she "remembers" buying them 35 y ago. O mi god. clearly I am speaking from experience
Q4 - well short answer no - long answer yes MW has the power to stop MF wasting the estate - that comes from a 1800s case where a widow was prevented ( made to replant I think) a wood that she had cut down - enforced by the eventual heir ( = remainderman ) . So he [your fella] cant 'walk in' but he does have rights against wasting
Barmaid will come in with a whip soon
and call use to order
( I love it when she does that )
The situation I think you have is
a silly old dement spending the heirs money on stupid legal points.
Hopefully nature will run its course.
Tried to do this earlier on but it got wiped
Barmaid will be along later
Q1 - the leading case is here
http://
Australian tax case that applies in the UK - the property after the death of a testator resides in the executor - but then after disposal he may have other duties administering the resulting trusts that arise from the will. - so in short yes he can as he really is representing the interests of the now dead testator.
Q2 they will have done ( agreed ) under the original will - and it is also allowed by the Trustee Act 2013. - dont have a solicitor as an exec ! You have read this before.
Q3 inventories and receipts - and yes fertile grounds for pointless quarrelling - s/o who is becoming demented insisting that shiny gew gaws in the house are hers because she "remembers" buying them 35 y ago. O mi god. clearly I am speaking from experience
Q4 - well short answer no - long answer yes MW has the power to stop MF wasting the estate - that comes from a 1800s case where a widow was prevented ( made to replant I think) a wood that she had cut down - enforced by the eventual heir ( = remainderman ) . So he [your fella] cant 'walk in' but he does have rights against wasting
Barmaid will come in with a whip soon
and call use to order
( I love it when she does that )
The situation I think you have is
a silly old dement spending the heirs money on stupid legal points.
Hopefully nature will run its course.
Hi Woof and PP nice to hear from you both. There is no cash in the estate. There is a power of attorney held by the beneficial occupier's daughter. The ultimate owner of the property is just entering the house either when the old lady is there or when she is not without prior invitation or even her knowledge. That person has removed items from the house and locked them away. I always thought that for a solicitor to charge they had to have a signed mandate to act? I don't see how a solicitor can charge the BO when it is the ultimate owner who is causing the problems by disputing ownership. CAB have been contacted but too complex for them.
Hi PP, I am fine thank you settled into the new house nicely. I still don't see that the ultimate owner can just walk into the BO home anytime he wants. I know landlords can't do that and this doesn't feel any different. The solicitors are clearly siding with the ultimate owner which also doesn't feel right.
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