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Beneficiary demanding rent clause overides

2 siblings beneficiaries, one executor...
2 siblings beneficiaries, one executor. Clause in will allows each to make use of there share of the estate as they see fit. Executor also beneficiary continues to live in her share of property with her young child as did prior to parents passing. Other sibling male, attacked younger female sibling twice and was removed from property by police as made threats to her and her young child in front of police. now demands rent for full house at market rent disregarding clause that each has the right to use their share as they see fit. violent benificiary delayed matters by two years due to not responding to executor requests, another missed sibling contested and a property dispute only resolved with a third party. And threats to property made all recorded. Safety of estate at stake. Making process longer than necessary. Is there any merit in his request? Note fixtures and fittings boiler heating owned by executor not estate so not marketable and estate unable to provide the basics to rent. Also every week looked like hm things would be resolved..
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Answered in 55 minutes by:
11/2/2013
Joshua
Joshua, Lawyer
Category: UK Law
Satisfied Customers: 26,070
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Verified

Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Joshua :

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?

Customer: Point 6 of will:
Customer: 6 I give the following specific legacies
Customer: 6 I give the following specific legacies.
Customer: Soz trying to send gong crazy. .. I declare my daughter shall register a charge of 60k. I declare that the remaining equity on my house pursuant to charge shall be divided 50% each between my daughter and son for their own use and benefit if they survived me 28 days
Customer: Do you have a response ...??
Joshua :

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?

Customer: Written by an established solicitors firm. Approx 4 specifics in the will. One which allowed me a 60k charge. Ie mother wanted me to have more as she's provided so much for the others and never for me. I lives with her and looked after her financially etc, hence she gave me first option to buy. And selling generally only with my written consent. Also - the other in relation to both beneficiaries have the right to use as written above. My query is that I continue to live in the home I had lived with my daughter and young child. My other sibling wasn't happy and attacked my twice day of funeral and was ejected by the police. I still wish to continue to use my share to my own benefit. Why should if he's been violent towards my daughter and I why should I move from my home and or pay rent in this home I lived rent free when the will also states otherwise. Is there merit to his claim as it was his choice to attack us.
Joshua :

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?

Customer: Ok will try and upload but includes names and don't want them live any suggestions ???
Customer: I will need to re type remove names so please bear with and I will include asap
Joshua :

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.

Customer: Am including usual and specifics ......... I declare that my daughter shall register a charge with hm land reg for 60k. I declare remaining equity divided 50% each between my daughter ( executor and benificiary ) and son ( beneficiary )for their own use and benefit if they survive me by 28 days. I express the property should not be sold without giving my daughter first option to purchase 50% share of my son. I give the residue of my estate to my daughter (executor and beneficiary) and son ( beneficiary) for their own use and benefit if they survive me 28 days. My executor / trustee have the following powers in addition to their powers under general law. Power to invest as if they were beneficially entitled includes right to invest in unsecured loans. Invest in other Jon income producing assets including policies of life assurance land worldwide. Power to use the income or residuary estate for or towards the cost of maintaining or improving any property forming part of my residuary estate. Or acquired by my trustees after my death. Power without restrictions admin act 1925. Trustee my executor... It goes on but this seems more general so not included thanks
Joshua :

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?

Customer: Generally have been given additional powers as I was living with my mother rent free, but paid all house hold expenses. Plus her holidays etc. she chose to originally disclude other siblings. I tried to train with her saying not fair, but her choice. Eventually she wrote brother back in but not other daughter - adamnent ahed don't me enough for them
Customer: both. male sibling gone into one Started talking about buying me out 6 hours after out mother passed... When removed from property. He and other family members called police to remove my friends and I and tried to take possession of the house. He said he wanted me and my at the time 5 year old daughter to die. All recorded with an incident number. Police removed him and other family members. But as I paid all bills and everything under my name as well as being executor they were removed. Ultimately. As their are two occasions where it's clear for their own use and benefit. Why should I not be allowed to use as I have always done continue to reside at no cost as this is my choice. I didn't stop him using his share. He chose to stay away based on his own violent actions. And being arrested once and second went short of being arrested . I was also battling a boundary dispute. So due to his actions he's chosen to stay away and now as he could use his share based on his violent actions toward myself and my daughter - now demands rent on whole property. Fixutures and fitting I own. Not part of estate. Not marketable without. Estate can't supply as no cash assets. I chose to use and benefit my share as I saw fit. So again. Is their merit. I wasn't instructed to put his share on the market. Only he wants me to pay his share. But he's chosen to stay away.
Joshua :

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?

Customer: Yes includes the word absolutely and my name. I declare my daughter (name, me) shall register a charge with hm land registry on the property for an amount of 60 thousand pounds absolutely if she shall survive me 28 days. That's exact wording
Customer: So re rent.. What's the legal stance. When clauses state I can use to my benefit twice. So can he. But again if he can not be violent the police would not eject him. Irony - he called them!!
Customer: Apols for spelling errors predictive text please ask for clarification if not clear. Can already see dreadful errors
Joshua :

Thanks.

Joshua :

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.

Joshua :

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.

Joshua :

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.

Joshua :

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.

Joshua :

Such sum can be deferred to be apportioned upon any eventual sale of the property if this is agreeable to both parties.

Joshua :

Is there anything above I can clarify for you?

Joshua :

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.

Joshua :

Is there anything else I can help you with on the above?

Customer: But if the will states each can do as they wish re there share. I am occupying my share only. He's chosen not to occupy his share. So he's made a decision not to occupy due to his behaviour. How I am then responsible to his share. I didn't request sole occupancy. His share after charge works and liabilities works out approx 28%. However still uncertain why I should pay rent on his share if he chose not to occupy. Not my decision but his.
Joshua :

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?

Customer: He owns two properties already. The house my primary residence. So I never agreed sole occupancy. He's chosen not to occupy his share. So if I decided to leave property can I expect him to pay rent without any agreed contract. Also, he's purposely delayed matters re distribution. Makes no sense.
Joshua :

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."

Customer: I've said nothing. All done by lawyers. However. The properties fixtures and fittings. Even boiler is owned by me. He has refused to pay toward them. So I have clarified he'd have to rent from me. Nor have I refused, not have I been asked to set up a plan to use his share to rent out. However expected all to be resolved practically every week. But for his delays in responding to agreeable way forward
Joshua :

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.

Joshua :

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.

Joshua :

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

Joshua :

Is there anything above I can clarify for you any further?

Customer: No that's great. Yes and makes sense. Thank you for your help. It's been extremely helpful.
Joshua :

A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though.

Joshua
Joshua, Lawyer
Category: UK Law
Satisfied Customers: 26,070
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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Satisfied Customers: 26,070
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