Conditions/Stipulations in a will?

Turtyturd

I am just wondering how legally binding/enforceable these are?

In this case there were estranged grandparents who were both tenants in common, Grandfather left his share of the house to the grandchildren of the only son he had contact with while the Grandmother left her share to her children.

Grandkids are now looking to cash in their share but the executor of the Grandmother's will is saying there is a condition in it to allow the youngest daughter (in her 40's) to stay there. Surely any conditions would only apply to the share covered by the will?

Peregrinus

Obviously grandma's will can only deal with Grandma's share of the property.

The question is, how are grandkids (who between them inherited a half-share from grandpa) seeking to "cash in their share"? They obviously won't be able to sell a half-share in the open market, so they are going to have to (a) agree to sell their share to the owners of the other half-share, or (b) agree with the owners of the other half-share to sell the entire property in the market, or (c) go to court to seek an order compelling the sale of the property.

Since going to court is time-consuming and massively expensive and wearing on all concerned, it's likely to be everybody's last choice. But the other two choices require agreement, and negotiation with interested parties, and the person who under grandma's will has a life interest in grandma's share of the property is certainly an interested party, and may not be highly motivated to agree to any settlement which doesn't end up giving her somewhere to live. And, reading between the lines, there may be reasons why grandma gave this interest to a woman in her forties - she may suffer from some kind of disablity, or without suffering from a disablity she may be so situated in life that it will be difficult for her to provide her own home. So her involvement, and the need for any settlement to accomodate her interest, could be a considerable complicating factor.

FreudianSlippers

Doesn't it depend on whether they were legally divorced or simply estranged? (Genuine question - I know nothing about this area of law)

Turtyturd

Thanks for the reply.

As far as I know they are (reluctantly) looking at option C. A is a non-runner as the other children all have their own mortgages/rent so wouldn't be in a position to buy the grandkids out. The Grandkids have tried option B but have been fobbed off repeatedly by the executor who is convinced that the condition in the grandmother's will allows the daughter to stay there.

The provision was made for the daughter because she was the only child living at home (had been married but split up and moved back in) and caring for her mother prior to the death. And the grandkids feel it's unfair that she continues to live for free in the house while they see nothing from it and have to pay their own mortgages. In their opinion if the house is sold and everyone gets a payout she will be able to find somewhere to rent.

My advice to them has been to come to a solution between themselves as if it goes to court and the house has to be sold solicitors will see the bulk of any money.

Turtyturd

FreudianSlippers wrote: »

Doesn't it depend on whether they were legally divorced or simply estranged? (Genuine question - I know nothing about this area of law)

I think it would come into play if the property passed on through succession as opposed to both parties agreeing to be tenants in common.

seagull

Is the grandmother's will legal? If she only owned half the house, can she add the clause allowing her daughter to live there? Effectively, she's setting conditions on property that isn't hers. I think this will need to be run past a lawyer.

Turtyturd

seagull wrote: »

Is the grandmother's will legal? If she only owned half the house, can she add the clause allowing her daughter to live there? Effectively, she's setting conditions on property that isn't hers. I think this will need to be run past a lawyer.

Apologies for the delay in getting back to this.

They intend on getting to a solicitor as soon as they can all arrange time off work together.

I would assume the will is legally sound with the exception of the condition. My thinking would be what's to stop some members continually adding conditions to their wills re: the property, thus constantly excluding the grandkids.

From their own research they seem to think they can apply for the house to be partitioned (impractical), charge the daughter rent (not really a long term solution), or apply for the sale.

seagull

Turtyturd wrote: »

I would assume the will is legally sound with the exception of the condition.

If the decision is that she doesn't have the right to have that clause in her will, does it invalidate the will in its entirety?

the world wonders

Turtyturd wrote: »

The provision was made for the daughter because she was the only child living at home (had been married but split up and moved back in) and caring for her mother prior to the death. And the grandkids feel it's unfair that she continues to live for free in the house while they see nothing from it and have to pay their own mortgages. In their opinion if the house is sold and everyone gets a payout she will be able to find somewhere to rent.

Maybe it's just the way you've explained it, but the grandchildren seem to be horrible people.

Turtyturd

seagull wrote: »

If the decision is that she doesn't have the right to have that clause in her will, does it invalidate the will in its entirety?

I honestly dunno, as you said talking to a solicitor seems to be the best step forward. But to me personally it would seem harsh on the children to miss out on their inheritance due to something small like that.

the world wonders wrote: »

Maybe it's just the way you've explained it, but the grandchildren seem to be horrible people.

I have connections to both sides of the dispute so don't want to get into who are the good guys and who are the bad guys but I can see why the daughter would think they are horrible but how long should they wait? As I said they have tried to informally negotiate an agreement and been ignored.

Peregrinus

Couple of points:

1. I don’t think the clause in Grandma’s will giving a life interest/right of residence over her half-share in the property is invalid.

2. If that clause is invalid, that does not invalidate Grandma’s entire will.

3. The thing about jointly -owned property is, basically, the co-owners have to agree about how to use the property. If they can’t agree, there is deadlock. Ultimately that deadlock can only be resolved by getting a court order for sale which, as already pointed out, is slow, expensive and emotionally wearing. In addition, it tends to devalue the property. (Properties sold by court order tend not to command the best prices.)

4. All of this was true even when the property was co-owned just by Grandma and Grandpa, but at least when there were only two owners, agreement about what to do with the property - even if only tacit agreement - was comparatively easy to reach. Now there is a whole bunch of owners, with differing interests - one person has a life interest/right of residence, others have a contingent interest which only comes into possession when the first person leaves or dies, still others have an immediate interest. And the people involved are of different generations and (presumably) at different stages of life in terms of their housing and financial needs. If you set out to design a situation in which it would be difficult to reach agreement on how to use or manage the property, you’d come up with something like this. It’s a recipe for deadlock.

5. Quite possibly a court-ordered sale is the only solution. But those who want a sale - the grandkids who inherited Grandpa’s share - should try very, very hard to avoid this. Apart from the delay, the likely poor sale price, etc, all sides’ costs of the court action will probably come out of the sale proceeds before any divvy-up between the co-owners. And, even if they don’t, everyone is going to have to pay their own court costs and this will reduce what they get from selling the house anyway.

6. It’s worth exploring offering money to those who don’t want a sale to get them to agree. If you pay them less that it would cost to fight the whole thing through the courts, you’re still better off. Plus, you get a quicker resolution, and the prospect of a sale under better conditions yielding a higher price.

7. Think especially about the position of the daughter who was left a right of residence. I have already pointed out that there may be special circumstances here. Whatever offer is made needs to recognise and address those circumstances. I note that the grandkids don’t see why they should have to “miss out on their inheritance due to something small like that”. But (a) they are not missing out on their inheritance; they will get it eventually and (b) the right of residence may seem small to them, but to the woman concerned it’s likely to be far from small. What the grandkids have been left is a half-share in a house that has somebody living in it - somebody who themselves has an interest in the house and who, reading between the lines, may have a particular need for residential accommodation that will not be easily met. If they do end up going to court, they should not expect the court to ignore these circumstances in whatever solution it imposes, and likewise they should not ignore them in any attempt to settle this matter by negotiation and the offer of money.

bardcom

The key question is, who owns the asset? Since the grandmother only owned half the house, she had no right to grant a lifetime tenancy without this matter having been agreed with (all) the owners.

Another key question involves how the grandfather left his half of the house. I assume it was only effective on the death of the grandmother. If the will was explicitly phrased such that ownership only passed to the children and grandchildren only after the lifetime tenant no longer lived there, then I assume ownership of the property remains with the estate, and as such, the executor is correct.

gozunda

Turtyturd wrote: »

The provision was made for the daughter because she was the only child living at home (had been married but split up and moved back in) and caring for her mother prior to the death.

So the current occupier of family home has been given a life interest in the family home where that person presumably grew up and later cared for her mother / grandmother of said grandkids. And same grand kids now wish to evict their aunt so they can liquidate and bring to immediate effect sale of that house for their financial benefit?

Nice grand children ...

Turtyturd wrote: »

And the grandkids feel it's unfair that she continues to live for free in the house while they see nothing from it and have to pay their own mortgages. In their opinion if the house is sold and everyone gets a payout she will be able to find somewhere to rent.
.

The fact that their aunt cared for the kids grandmother until her death and the aunt remains living in her family home at the bequest of her own mother / kids grandmother.

From the above It would appear that the grand kids are now seeking a forced sale of their aunts childhood house which will likely render their aunt homeless and the possibility that she may have significant difficulty finding someplace to rent considering current market conditions.

The fact that the grand kids appear to view their own 'mortgages' over other compassionate considerations is quite telling in itself imo.

Turtyturd

Thanks for the replies lads. As I said I have connections on both sides, and can understand both sides of the argument so don't want to get into the debate of who is right and who is wrong.

Latest I heard was that the grandkids had been to a solicitor earlier and were told to take out a grant of probate, and to send a letter to the daughter/executor saying that if they were objecting to the sale of the house they were seeking to be paid rent for their share of the property. Again would they not need a court order for this?

Edit: @ Peregrinus: The comment about them missing out on their inheritance over something small like that was my own comment about the children missing out because the clause inserted by the grandmother may not be valid, but as you said that wouldn't invalidate the whole will.

Peregrinus

Turtyturd wrote: »

Edit: @ Peregrinus: The comment about them missing out on their inheritance over something small like that was my own comment about the children missing out because the clause inserted by the grandmother may not be valid, but as you said that wouldn't invalidate the whole will.

Oh, right, got you.

Whether the will is valid or not, the grandkids will not inherit from grandma. If the will is valid then the people named in the will - grandma's own kids - inherit. If the will is invalid then grandma is intestate and the estate goes to grandma's next of kin, who are her own kids. Either way, the grandkids have no entitlement to any part of grandma's estate.

The grandkids inherit a half-share in the house - that's all that Grandad could leave them. They get this regardless of whether grandma's will is valid or not, or whether the life interest granted to their aunt is valid or not. So their inheritance is, basically, a half-share in a property co-owned with a bunch of other people. It's in the nature of such an asset that you have to reach agreement with your co-owners about how to deal with the property, or else waste everyone's time and money in court proceedings. The grandkids aren't "missing out on their inheritance" by having to reach agreement with the co-owners, or having to litigate.

Turtyturd

Agreement really is the key thing, but it's a lot easier to say than do. The children don't agree with selling the house, and the grandkids don't agree with the current status quo.

The solicitors suggestion about rent would seem to represent a middle ground Imo, but also opens up questions about the daughters ability to pay.

Peregrinus

Turtyturd wrote: »

Agreement really is the key thing, but it's a lot easier to say than do. The children don't agree with selling the house, and the grandkids don't agree with the current status quo.

The solicitors suggestion about rent would seem to represent a middle ground Imo, but also opens up questions about the daughters ability to pay.

Paying rent for the half-share that she doesn't have a life interest in may be a burden, but it may be less burdensome than paying to defend her position in court proceedings. Plus, when disputes between co-owners are litigated, the courts do tend to default towards making a sale order, since continued co-ownership of the property by co-owners who cannot agree is usually not practical or viable - the property just deteriates through neglect, wear and tear, and everybody loses. So the life tenant agreeing to pay rent for the half-share of the property that she doesn't have any interest in may be the least worst solution from her point of view.

Turtyturd

Would the grandkids need a court order to seek rent?

According to them their solicitor told them to just send a letter to the daughter saying they wanted rent for their half of the property as she was preventing them from benefitting from their share in the property (through sale). But if the daughter ignores a letter from them (which I'd be inclined to do in her position) it puts the situation back to square one.

Would they also not need to have the grant of probate sorted, and names on the deeds etc, before they could claim rent?

Peregrinus

Turtyturd wrote: »

Would the grandkids need a court order to seek rent?

According to them their solicitor told them to just send a letter to the daughter saying they wanted rent for their half of the property as she was preventing them from benefitting from their share in the property (through sale). But if the daughter ignores a letter from them (which I'd be inclined to do in her position) it puts the situation back to square one.

Would they also not need to have the grant of probate sorted, and names on the deeds etc, before they could claim rent?

The executor of grandpa's estate can ask for rent. To take legal action about this, he'd need to get a grant of probate, but there is no reason why a conversation about how the property should be dealt with shouldn't open before that.

Mr. Incognito

An executors job is to faithfully administer the terms of the will. He cannot open negotiations with beneficiaries.

I would doubt very much that the grandparents were tenants in common. I would expect they were joint tenants.

As such the house, if grand dad died first would have passed to his wife outside of the will. I expect a solicitor would not draft a right of residence unless she had the full interest.

Without sight of the will this is just conjecture.

Any costs challenging the will will come out of the estate, unless of course grand dads estate didnt have the house in which case i hope thet have deep pockets.

Peregrinus

I'm not suggesting that the executor of Grandpa's estate should open negotiations with beneficiaries of grandpa's estate. I'm suggesting that he should open negotiations with the person - not a beneficiary of the estate - who is occupying a property in which the estate has an interest. Arguably, as executor, his duty requires him either to obtain vacant possession of the property (which will require either an agreement with the occupier - therefore negotiations - or court proceedings) or to obtain rent from the occupier (which also requires either agreement or a court order). So - unless the executor heads straight to court - there are going to have to be discussions as some point, and better that they should start sooner rather than later, if only because the more arrears of rent that might be demanded the harder it will be to come to terms.

As to the form of co-tenancy, the OP stipulates that Grandma and Grandpa held as tenants in common. I note that you think that a solicitor drafting grandma's will wouldn't provide for a life tenancy unless he thought she was the sole owner, but wouldn't you equally expect that a solicitor drawing grandpa's will wouldn't include a clause leaving grandpa's interest in the property to the grandkids unless he expected grandpa's interest to form part of his estate? So my guess is that the OP is correct in stating that the tenancy was in common, and that both solicitors were correct in drafting on the basis that each estate would include a share in the property. And my very wild guess is that grandma's solicitor pointed out the uncertain merits of bequeathing anybody a life interest in a tenancy-in-common, but for whatever reason grandma was insistent that that was what she wanted.

Turtyturd

Surely on the other hand a solicitor wouldn't draft a will explicitly stating both parties as tenants in common unless he was certain this was the case?

Edit: Peregrinus already mentioned it.

Mr. Incognito

Peregrinus wrote: »

I'm not suggesting that the executor of Grandpa's estate should open negotiations with beneficiaries of grandpa's estate. I'm suggesting that he should open negotiations with the person - not a beneficiary of the estate - who is occupying a property in which the estate has an interest. Arguably, as executor, his duty requires him either to obtain vacant possession of the property (which will require either an agreement with the occupier - therefore negotiations - or court proceedings) or to obtain rent from the occupier (which also requires either agreement or a court order). So - unless the executor heads straight to court - there are going to have to be discussions as some point, and better that they should start sooner rather than later, if only because the more arrears of rent that might be demanded the harder it will be to come to terms.

As to the form of co-tenancy, the OP stipulates that Grandma and Grandpa held as tenants in common. I note that you think that a solicitor drafting grandma's will wouldn't provide for a life tenancy unless he thought she was the sole owner, but wouldn't you equally expect that a solicitor drawing grandpa's will wouldn't include a clause leaving grandpa's interest in the property to the grandkids unless he expected grandpa's interest to form part of his estate? So my guess is that the OP is correct in stating that the tenancy was in common, and that both solicitors were correct in drafting on the basis that each estate would include a share in the property. And my very wild guess is that grandma's solicitor pointed out the uncertain merits of bequeathing anybody a life interest in a tenancy-in-common, but for whatever reason grandma was insistent that that was what she wanted.

No.

I would think that the grandchildren were residual beneficiaries and not the beneficiaries of specific bequests.

I think that the clause probably reads along the lines of

"And all the residue of my estate whatsoever to be divided amongst my grandchildren in equal shares".

As opposed to

"My half interest in property xyz to be divided amongst my grandchildren in equal shares".

If you step back it is very very unusual to bequest real property to a number of beneficiaries as it will always end up in war. Any competent solicitor would not advise such a course of action.

I'm suggesting that he should open negotiations with the person - not a beneficiary of the estate - who is occupying a property in which the estate has an interest.

With respect- this is the same thing. He has no legal right to do so. His job is read will, do what will says. Nothing else. Only the court can direct any other action.

The grandchildren, and let this be clear, OWN NOTHING. Nada. Zip. Zilch.

A chose in action is not a property right. They own a future interest to an unrealised benefit. Either the executor has the power to take the assets of the estate pursuant to an extracted grant of probate, and those assets are identified in the will or they pass outside the will.

I think you are adding two and two and getting twenty.

1. Is Grandad and Grandma still alive.
2. If they are both dead who died first.
3. Is the property joint (outside the will) or as tenants in common.

For the record I have never, in all my career seen a will that dealt with the marital home as t-i-c. Always joint. If they are legally separated the marital home is usually sold and the proceeds split. If it was an informal separation it's more than likely joint.

3. If it was tenants in common how did the will of the person who died first treat the property. His wife at the time would have been entitled to her legal right share before any beneficiary even got a sniff. Was this not provided for her?

4. Even if the grant was not taken out of grand-dads estate and grandma has passed away her executor is oblidged by law to take her legal right share from his estate. No choice. Has to do it. This will most likely gobble his half interest in the house even if it was tenants in common.

5. Her bequest sounds specific. A fixed right of residence for x years. A solicitor would not draft this unless he was satisfied she had this to give.

Look,

I think the grand children are snookered here. But once again, without sight of the will this is just conjecture.

Peregrinus

The executor's first job is to identify and get in the assets of the estate, and then to distribute them in accordance with the terms of the will. While they're in his care he has to deal with them with proper care and attention, e.g. collecting rent that is due on property of which the estate is landlord, paying rent on property of which the estate is tenant, etc, etc. In this case, assuming the estate does own a property (or an interest in a property) which is occupied, dealing with the occupier is part of the executor's duties. I'd have thought he'd have been at risk if he allowed the occupier to continue to occupy while making no attempt to collect any rent, assert the estate's right to vacant possession, or anything else.

On the question of whether the property is held on a tenancy-in-common or not, I'm taking the OP's word that it is. You may never have seen that in practice with a married couple, but I have. In the case I recall, both parties had been married before, and had children, and they wanted to keep their affairs distinct, so they bought their marital home as tenants-in-common. But it could also happen that, when a couple separate, they sever a joint tenancy and create a tenancy-in-common. It would be interesting to know exactly how or why the tenancy-in-common arose in this case, but I see no reason to reject the statement in the OP that the property is held in common, and (subject to your point that Grandpa's will may only deal with in in a residual clause) the fact that both wills purport to deal with it is consistent with that. I agree that neither of the wills reflects much thought about how the bequest would play out in practice, but that may simply be because the testators wouldn't take advice about what is prudent when it comes to bequeathing residential property.

Mr. Incognito

The executor's first job is to identify and get in the assets of the estate, and then to distribute them in accordance with the terms of the will

Job 1. Identify assets properly forming part of the estate
Job 2. Extract the grant
Job 3. Take in the assets.
Job 4. Distribute the assets.

Rent doesn't arise unless it's already in existence. He cannot negotiate or create a new tenancy.

Here, Job 1 and 2 do not appear to have happened. For all we know he could still be alive and they are getting knickers in a twist over some perceived entitlement.

In short, we know that the grandmother has died and there is an executor there. That's it.

Peregrinus

Mr. Incognito wrote: »

Job 1. Identify assets properly forming part of the estate
Job 2. Extract the grant
Job 3. Take in the assets.
Job 4. Distribute the assets.

Rent doesn't arise unless it's already in existence. He cannot negotiate or create a new tenancy.

But taking in the assets definitely includes obtaining vacant possession, if the estate is entitled to it. Which means the question of what the occupier's rights are needs to be answered.

When I suggested, back in post #18, that a conversation about how to deal with the property should be opened now, rather than after a grant is taken out, I didn't actually say that the executor should open it. Ultimately, it is the beneficiaries of the two estates who will become co-owners who are going to have to agree, but I think how the executor handles the estate will depend to some extent on what they can agree. If the ultimate decision (whether by agreement or by court order) is that the property be sold, it will make sense to sell the property out of the estate and distribute the proceeds, rather than vest the property in the beneficiaries, and have them all join in the sale. So if I were the executor, I think I would be banging the beneficiaries' heads together and advising them that they need to work out what is possible and what is not, and that the longer it takes them to do this the more difficult it will be to reach agrement, and the more the administration of the state is at risk of being prolonged.

Mr. Incognito

Peregrinus wrote: »

But taking in the assets definitely includes obtaining vacant possession, if the estate is entitled to it. Which means the question of what the occupier's rights are needs to be answered.

When I suggested, back in post #18, that a conversation about how to deal with the property should be opened now, rather than after a grant is taken out, I didn't actually say that the executor should open it. Ultimately, it is the beneficiaries of the two estates who will become co-owners who are going to have to agree, but I think how the executor handles the estate will depend to some extent on what they can agree. If the ultimate decision (whether by agreement or by court order) is that the property be sold, it will make sense to sell the property out of the estate and distribute the proceeds, rather than vest the property in the beneficiaries, and have them all join in the sale. So if I were the executor, I think I would be banging the beneficiaries' heads together and advising them that they need to work out what is possible and what is not, and that the longer it takes them to do this the more difficult it will be to reach agrement, and the more the administration of the state is at risk of being prolonged.

For the third time. Such an approach is illegal.

You really don't seem to be grasping this.

You cannot go outside the will to make a deal.

Peregrinus

A, Show me where I'm suggesting that anyone should go outside the will.

B. I'm suggesting that the beneficiaries of the respective estates need to talk to one another about how they want the property in which they all have an interest to be dealt with. Show me why this is illegal.

Mr. Incognito

Peregrinus wrote: »

A, Show me where I'm suggesting that anyone should go outside the will.

B. I'm suggesting that the beneficiaries of the respective estates need to talk to one another about how they want the property in which they all have an interest to be dealt with. Show me why this is illegal.

Why?

1. They do not have an interest. None. They have an expectation of an interest. That is not the same thing. The separated spouses legal right share could operate to wipe their interest.

2. Even if they do ultimately have an interest, which I doubt for the reasons above having a little love in chat wont make a blind bit of difference. They will ether have to take their bequest or disclaim it. There is no Carlsberg option to get together and divvy it up and direct the executor to do things he has no authority to do.

Peregrinus

The beneficiaries have a beneficial interest in the assets of the estate to the extent of their entitlement to them - there's a bit of a clue in the name "beneficiary". The executor has a legal interest only.

I'm not suggesting that they direct the executor to do things that he has no authority to do. I'm suggesting that, in regard to the property in which they have been left a half-share, they are going to have to do one of four things. A. Let the person with a life interest in the other half-share occupy the entire property for her life, free of charge. B. Come to terms with her whereby she pays rent for the half-share in which she has no interest. C. Come to terms with her and the other beneficiaries of grandma's estate whereby she vacates the property, the property is sold and the proceeds are divvied up among those entitled, including the life tenant. D. Go to court, and try and get the court to order option C in default of agreement.

Now, I'm guessing that A will not appeal to them and D, obviously, is their last resort. That leaves B and C. There is no reason why they should neglect both B and C until a grant of probate has issued; they can start talking to the owners of the other share now, and they probably should. The situation will not improve to their advantage by delay.

(And, incidentally, should they reach early agreement with all parties they can indeed enter into a Deed of Arrangement providing for the executor to do things not required by the will. If beneficiaries who between then are entitled to the entirety of the estate or of a specific bequest are all of full age and legal capacity, they can enter into a deed of arrangement among themselves varying the disposition of the estate or bequest in any way they like. They would be well advised to take legal and tax advice before doing that, but they can unquestionably do it, and the executor can give effect to it. I have acted in such matters many times. And since there is a considerable convenience in doing things this way, I think they would be wise at least to explore the possibility of reaching an agreement before the administration of the estate is concluded.)

Mr. Incognito

A. Let the person with a life interest in the other half-share occupy the entire property for her life, free of charge. B. Come to terms with her whereby she pays rent for the half-share in which she has no interest. C. Come to terms with her and the other beneficiaries of grandma's estate whereby she vacates the property, the property is sold and the proceeds are divvied up among those entitled, including the life tenant. D. Go to court, and try and get the court to order option C in default of agreement.

None of these things are possible

A. They have no interest, beneficial or otherwise until the estate is administered.
B. She has an interest pursuant to a valid will. They don't
C. Illegal. See A.
D. They have no standing to go to court.

Look, we are not going to be able to agree because you cannot grasp this simple point they are entitled to nothing. They own nothing. The beneficiaries have very very vey very little to do with bequests until the crystalise by the death and the extraction of the grant. Until then they have an IOU that isn't worth anything.

You still haven't considered the joint interest is more likely, the legal right share or the fact that grand-dad may still be alive.

I am repeating myself here but if you cannot get the basics of probate there is no point repeating myself further.

Take care and have a good weekend.

Peregrinus

Mr. Incognito wrote: »

None of these things are possible

A. They have no interest, beneficial or otherwise until the estate is administered.
B. She has an interest pursuant to a valid will. They don't
C. Illegal. See A.
D. They have no standing to go to court.

Look, we are not going to be able to agree because you cannot grasp this simple point they are entitled to nothing. They own nothing. The beneficiaries have very very vey very little to do with bequests until the crystalise by the death and the extraction of the grant. Until then they have an IOU that isn't worth anything.

You still haven't considered the joint interest is more likely, the legal right share or the fact that grand-dad may still be alive.

I am repeating myself here but if you cannot get the basics of probate there is no point repeating myself further.

I don't claim to be an expert in probate, but - no offence - I think I may have a better grasp of the basics than you.

The legal personal representative does indeed hold the assets of the estate as trustees for those entitled - Administration of Estates Act 1959 s. 7(1); Succession Act 1965 s.10(3); but in fact the rule predates either of these statutory expressions. "Those entitled" may well be, e.g., creditors of the estate or spouses exercising their legal right in priority to beneficiaries named in the will. The point is, though, that the legal per rep has a legal interest only; the beneficial interest always belongs to someone else. It is not true to say that the beneficiaries named in the will have no interest in the assets of the estate until the estate is administered; if the facts are such that the people named in the will are in fact entitled to assets, then those assets are held on trust for them. They have a beneficial interest.

That being so, it follows that a beneficiary who is (or a number of beneficiaries who collectively are) entitled to the entire interest in a particular asset or particular assets or a particular share of the estate or the whole of the estate can, if of full age and otherwise legally competent, direct the trustee to deal with it in any way they please. This is a simple application of the rule in Saunders -v- Vautier. When beneficiaries desire to do this, a Deed of Arrangement is the mechanism by which they usually do it and, as I said before, I have drawn up several such Deeds on behalf of clients. It's true that the Deed cannot enforced against the legal per rep until he has taken out a grant, but he has a legal duty to take out a grant and as soon as he does he can be required to do as directed by the beneficiaries. And of course even before he takes out a grant the beneficiaries can enter into a Deed as between themselves as to how the asset will be dealt with when the grant is taken out; this is binding as between the beneficiaries from the moment it is executed, and enforceable as soon as the grant is taken out. Apart from any other consideration, if everybody with any claim to the asset concerned is party to such a deed, who would have the locus standi to challenge it?

If you still think that this is illegal, you need to tell me what your authority for that proposition is.

Mr. Incognito

Peregrinus wrote: »

I don't claim to be an expert in probate, but - no offence - I think I may have a better grasp of the basics than you.

The legal personal representative does indeed hold the assets of the estate as trustees for those entitled - Administration of Estates Act 1959 s. 7(1); Succession Act 1965 s.10(3); but in fact the rule predates either of these statutory expressions. "Those entitled" may well be, e.g., creditors of the estate or spouses exercising their legal right in priority to beneficiaries named in the will. The point is, though, that the legal per rep has a legal interest only; the beneficial interest always belongs to someone else. It is not true to say that the beneficiaries named in the will have no interest in the assets of the estate until the estate is administered; if the facts are such that the people named in the will are in fact entitled to assets, then those assets are held on trust for them. They have a beneficial interest.

That being so, it follows that a beneficiary who is (or a number of beneficiaries who collectively are) entitled to the entire interest in a particular asset or particular assets or a particular share of the estate or the whole of the estate can, if of full age and otherwise legally competent, direct the trustee to deal with it in any way they please. This is a simple application of the rule in Saunders -v- Vautier. When beneficiaries desire to do this, a Deed of Arrangement is the mechanism by which they usually do it and, as I said before, I have drawn up several such Deeds on behalf of clients. It's true that the Deed cannot enforced against the legal per rep until he has taken out a grant, but he has a legal duty to take out a grant and as soon as he does he can be required to do as directed by the beneficiaries. And of course even before he takes out a grant the beneficiaries can enter into a Deed as between themselves as to how the asset will be dealt with when the grant is taken out; this is binding as between the beneficiaries from the moment it is executed, and enforceable as soon as the grant is taken out. Apart from any other consideration, if everybody with any claim to the asset concerned is party to such a deed, who would have the locus standi to challenge it?

If you still think that this is illegal, you need to tell me what your authority for that proposition is.

Once again, this is all predicated on the proposition they are entitled to anything which i doubt.

You started with the view they could direct the executor to claim rent which they cant. Of course its held on trust but the difference is that they cannot direct trustee to do anything contrary to the will.

Now you are talking about deeds between the beneficiaries. This is all after the fact. Once they have their inheritence they can have a deed. Equally they can burn it or throw it down the well. What they cant do is get together and diect the executor which was always my point.

My starting point is 1. We dont know if grandad is still alive. 2. The legal right share may apply. 3. Once these are sorted and the grant is extracted THEN they can claim. Not before.

I really dont see how this is so complicated.

You seem to be changing your approach now till after the grant. Is that agreed?

Also general trust law and saunders doesnt apply to probate as the act overrides it.

http://www.irishstatutebook.ie/1965/en/act/pub/0027/index.html

Here is a good authority

Stephen Thomas Strong v Maureen Elizabeth Holmes, Richard Holmes and Mark Holmes
2009 99 SP
High Court
12 March 2010
Neutral Citation Number: [2010] IEHC 70
unreported
Mr. Justice Roderick Murphy
March 12, 2010
In the Matter of the Estate of Robert Henry Holmes, Late of Newcastle, Castlepollard, County Westmeath, Farmer (Retired), Deceased
and
In the Matter of Sections 55 and 56 of the Succession  Act 1965 And in the Matter of Section 56(6) of the Succession  Act 1965

Its a good over view that highlights

1. Legal right share over rides everything even if testator doesnt wish it to.
2. The executor cannot disclaim one beneficiary at the cost to another.

You cannot apply general trust law to probate. The act is the primary authority

Peregrinus

I'm accepting the facts presented in the OP - the property is held on tenancy in common. I'm assuming that grandma and grandpa are both dead - I think that's implicit in the OP, where we are told that the grandkids are looking to cash in their share of grandpa's estate. I don't think they'd be doing that if grandpa were still alive, somehow. I suspect, but I do not know, that a grant of representation has already been taken out in respect of grandpa's estate, but let's assume it hasn't. Assume for the purposes of argument that the legatees who, under grandpa's will, are to receive his share in the house are of full age, etc.

Those who expect to inherit grandpa's share in the house do not need to wait until a grant is taken out, still less until the share is vested in them. They can agree among themselves what is to be done with respect to their share of the house, and indeed they can agree with the persons entitled to grandma's share what is to be done with the entire house. The can enter into a deed about this which will bind them all. Why would it not bind them? Once the executors of each estate (a) take out a grant, and (b) are satisified that the parties to the deed are indeed entitled to the house (e.g. it's not required to satisfy the demand of creditors, or similar) then as trustees of the property for those entitled they are bound to do as directed. I'm not aware of anything in the Succession Act or the Administration of Estates Act which would change this situation and, as already pointed out, if there were such a provision nobody would have locus standi to enforce it, so what would be the point of including it?

If you maintain there is such a provision, can you cite it?

Mr. Incognito

Okay,

Lets try this. Lets sat that they are tenants in common and separated. Ignoring the joint tenancy and that accepting both solicitors have been ridiculously poor draftsmen and have carried out no due diligence and /or have no experience / and are agreeable to draft a clause to divide real property six ways.

1. He dies first. She gets the house pursuant to section 56. They have nothing as a result.

2. She dies first. He gets the house pursuant to section 56. They are all entitled. There is a person in residence.

The executor would sell the house and pay off the resident and distribute the proceeds. There is no other option unless they all get together and five disclaim and one takes the lot.

Thats it.

Peregrinus

I said I am taking the facts stated in the OP to be correct, which means that the death of the first grandparent their share in the house did not pass to the second under s.56. If it did, the situation outlined in the OP would not have arisen.

Hypothetically, if it did, then the general legal position that I have already outlined would still apply, with the caveat that the necessary parties to amy deed of arrangement would be, or include, those entitled to the property under s.56, since the legal per rep would be holding on trust for them.

Turtyturd

Apologies for dragging up an old topic but thought it would be easier than outlining the situation again. Turns out the situation was as outlined in the OP and the grandkids have taken out a grant of probate, and I was just wondering a few things about CAT.


From what I can make out CAT has to be paid by October 31st this year, is this correct?

Grandfather died in 2009, and the valuation for probate is from that date, do the thresholds from that year also apply?

The daughter living in the house is looking to contest her fathers will and say she was not provided for under section s117. Should they not wait til this has been sorted before paying tax, as any ruling in her favour would reduce the amount they have to pay?

Finally on her contesting the Will, how long does she have to do this? Anything I have read on here has said 6 months but the revenue site says 12 months.