Thanks for your question. Please kindly RATE my answer when you are satisfied
Do you have the exact wording from the will of the gift of the house / residue of the estate and the clause you refer to about doing as they see fit please?
Sorry for the delay in reverting to you - I am on an offline over the weekend. I do not under the provision relating to the £60K charge. Is there anything further in relation to this in the will and/or do you know what this relates to? I am grateful for the wording in relation to the house. Was the will written by a solicitor or was it written at home e.g. making use of a DIY will kit?
Thank you. In order to give you specific responses I really need to see a copy of the will. Are you by any chance able to upload it or copy and paste the wording. Alternatively if you can't I can give you slightly more general information directly related to this which should help but probably will not be quite as useful as if I can relate it directly to the will. Would you let me know how you would like to proceed?
You can either upload as a pdf or image and I can ask that the thread is locked after we have finished so that it is not accessible by others or you could retype - I am sorry to put you to so much trouble if you decide to retype.
Thank you so much for that. That is fine. I have huge concerns about this clause "I declare that my daughter shall register a charge with hm land reg for 60k". Is this exactly how it appears in the will word for word?
Thanks. This clause "I declare that my daughter shall register a charge with hm land reg for 60k". Is this exactly how it appears in the will word for word?
I am deeply uncomforatble with the provision re the charge because I am very concerned that this may not take effect as a gift. However hopefully you have been able to do this unopposed and this being the case the issue is redundant so far as it remains unopposed. However if the will has been defectively drawn in this respect you may have a claim of negligence against the solicitors that prepared it.
In terms of your respective rights with your sibling in the property. Leaving aside the charge, the will expressses that each of you will own the remaining equity in the property as to 50% each absolutely. This means that either of you can force a sale of the property against the others wishes however the will gives you a right of pre-emption - i.e. a right of first refusla on your siblings share.
There is no life interest or simliar right however that you have posted giving you a right to prevent or delay the sale beyond this.
If you are living in the property and your sibling is not then he has the right to claim something called an occupational rent for your sole occupation of the property. This is a market rent for the property pro-rataed to his equity share in the same. So for example if he owns 50% of the property then he would be entitled to claim 50% of the market rate rent for your sole occupation. If he owned 35%, he would be entitled to claim 35% of the market rate rent for the property and so on.
Such sum can be deferred to be apportioned upon any eventual sale of the property if this is agreeable to both parties.
Is there anything above I can clarify for you?
I am just stepping away for a short while as supper is ready. I will be very pleased to revert to you if there is anything else I can help you with a little later.
Is there anything else I can help you with on the above?
Have you left those aprts of the home which your sibling would occupy whilst there free and made it clear that your sibling could occupy the property (but for any orders by the police and so on) if he wishes and/or have a lodger move in to raise income in respect of his share?
Thanks for the clarification. The matter was decided in the case of Re Pavlou which provides that "...if a tenant in common leaves the property voluntarily, but would be welcome back and would be in a position to enjoy his or her right to occupy, it would normally not be fair or equitable to the remaining tenant in common to charge him or her with an occupation rent which he or she never expected to pay."
What this means is that providing you can demonstrate that your sibling is free to live at the property so far as you are concerned or free to rent out his part of the property to a lodger if he wished to dervie income (i.e you are not intent on sole occupation of the property and would accept a lodger ) then he will be limited by the courts in his ability to claim occupation rent from you. If you were to refuse to allow him or a lodger into joint occupation with you then this could be seen as exclusion by you of your sibling which can expose you to claims for occupation rent.
He must pay towards upkeep of the property pro rataed to his share. If he does not then as and when the property may be eventually sold, you can seek a claim for suchh maintenance payments he has failed to pay towards the property.
All you really need do to protect yourself is record in writing - e.g. email that you are quite happy as above and that you have never and would never seek to exclude him from the property and is welcome to live there and/or rent out his share to a lodger. On this basis he will have diffculty in seeking occupation rent and the written record would sever as very useful evidence in the hopefully unlike event he chooses to take the matter to court
Is there anything above I can clarify for you any further?
A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me
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