My dad passed two years ago and his will stated that his estate would be passed on to my brother and myself. His estate is the house.
In his will it states that his wife (our stepmum) can live in the property until she dies. If this happens or if she sells the property only then we will receive our inheritance.
It has come to light that the stepmum has not signed a TR1 and a declaration of trust. Our solicitors are trying to contact her but with no joy.
Legal challenge: Can our stepmum stop us inheriting our late dad’s house and leave it to her own daughter by not signing a document?
To add to the mix she is terminally ill and she is now stating she is too ill to sign any documentation. Our solicitor has advised us that there is a possibility that if she dies and the documents are not signed that everything will go to her daughter.
They had a tenants in common agreement and both their names are on the Land Registry. Please can you help on this matter. The solicitors do not seem to know themselves and I’m thinking of finding another firm.
Michael Prendergast, partner at Dickinson Parker Hill Solicitors, replies: First of all, I am sorry to hear of the sad circumstances that have led to the current situation.
By putting in place a will, your father did try to bring some certainty to the administration of his estate.
The type of trust your late father has included in his will is often sensible when you are dealing with a second, or sometimes third or fourth, marriage. It is commonly known as a ‘life interest trust’.
This allows the testator (the person making the will) to ensure their surviving spouse is protected in the event of their death, usually by giving them somewhere to live for the rest of their life, but also ensures that ultimately assets, such as a house, end up in the hands of children once the surviving spouse has passed away.
Michael Prendergast: ‘All is not lost if your step-mother won’t sign the paperwork now’
The trust works to prevent the surviving spouse from simply receiving the assets and redirecting them to other beneficiaries, who might not necessarily be the deceased’s children.
The surviving spouse only has the right to the assets for their lifetime, so they can’t give them away or include them in their own will.
What happens when someone with this type of will dies?
In the event of this type of will trust coming into effect, when a person dies, the executors usually arrange for the assets, in this case the house, to be put into the names of the trustees so that they can administer the trust.
This would normally require the executors and your step-mother to sign paperwork. This would include the TR1 form you refer to and also sometimes a declaration of trust.
Here, it sounds, for whatever reason, this was not done and the house has ended up in your step-mother’s name, when presumably she only owns half while your father’s half was left to you and your brother.
As you have said the house was held as ‘tenants in common’, your step mother was the last named survivor on the title deeds, so the legal title to the house is now in her name.
This does not mean she gets the whole house though, only that she is the last person alive who can sign the paperwork. It may well be that your step-mother was named as one of the executors in your late father’s will, perhaps alongside you.
Therefore, it isn’t quite correct to state that your step-mother’s daughter will get the whole house if your step-mother dies.
The legal title to the house would pass to her estate, as she would be the last named owner to pass away. However, the equitable title, the part of the title that determines who gets what, would not simply form part of her estate.
Only her part of the equitable title to the house would form part of her estate and her estate would hold your late father’s share upon trust.
What can you do to protect your inheritance?
The situation described above is not ideal and as a result you are left in a situation where your interest is somewhat less protected than it could be because your late father’s share in the house wasn’t put into the names of the trustees of his will.
There are steps that can be taken to protect your position though.
Practically speaking you obviously can’t force your step-mother to sign the paperwork to put everything into the correct names.
However, you can register a specific type of restriction in form C, L or N at the Land Registry to protect your position and your equitable interest in the property. These are the standard forms of restriction used by the Land Registry and referred to in their Practice Guide 19.
This will ensure that your step-mother cannot sell the property without your knowledge and consent whilst she is alive and her executors will not be able to do so either in the event of her death.
Therefore, all is not lost if your step-mother won’t sign the paperwork now.
The Land Registry charges £20 to file the restriction electronically and £40 for a paper application. You could do this yourself but it will probably require some specific drafting, so it is best to get a solicitor to do it for you.
Solicitors’ charges vary widely, but they could charge £400-500 for initially trying to persuade your stepmother to sign the TR1 form, and if this fails lodging the relevant restriction.
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