Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
May I ask if you ave discussed this with your daughters and if so whether they are willing?
Would I be correct to presume that you signed a formal trust deed to create the trust? How old are each of your daughters now?
It is a Declaration of Trust and my daughters are age 13 and 7. I was in no fit state at the time of signing over having found out my husband was unfaithful and I was losing blood and become anaemic which since resulted in a diagnosis of Ulcerative Colitis as opposed to Cancer which was my initial concerns and panic to get the land in trust as did not want it to go to husband at time. We have since moved on and he apologised and we have become close again, however, job security is not great at moment and we are struggling to decorate our home and provide the kids with all their needs. I am in remission at moment but worry that if my UC got worst I may not be able to work in the future and again another need to revert the trust.
Thank you. I am sorry to hear of your circumstances. I am glad they have taken at least a slight turn for the better. From what you say you likely placed the property in a contingent bare trust for your daughters - ie. they have the property absolutely between them once they turn 30. Do you agree this assessment?
Not sure reading the docs, however, the title absolute states me as propietor and restrictions: no disposition by a sole proprietor of the registered estate except a trust corporation under which capital money arises is to be registered unless authorised by an order of the court. and No disposition by the proprietors of the reg estate is to be registered unless one or more of them makes a statutory delcaration or statement of truth, or their conveyancer gives a certificate, that the disposition is in accordance with a Declaration of my father (trustee) or some variation thereof referred to in the declaration, statement or certificate. NB. I am settler and trustee.
Yes the property is between just them and I am the main carer for both.
Thanks. You are reading from the land registry document here. The land registry does not keep records of the terms of trusts. You would need to obtain a copy of the actual trust deed you signed from the trustee or solicitor to ascertain its terms. From what you say this is likely to be a contingent bare trust. It is possible it is a life interest trust but I think it unlikely from what you say.
It would be sensible to obtain a copy of the actual trust deed you signed as above if you do not have it to be sure but shall I proceed on the strong probability it is a bare trust as above?
I have the Dec of Trust which is made between me (settlor) and father trustee. whereas the settlor is the estate owner and registered proprietor of the land. The settlor is desirous of settling the said land upon her children in manner hereinafter appearing. The settlor is desirious of appointing the 2nd Trustee to act a Trustee with her and 2nd trustee has agreed to so. The settlor shall hold the property upon trust for sale and the net rents and profits theron until sale upon trust for my daughters as tenants in common in equal shares provided netherless that the share of each of them shall not vet until each of them respectively attain 30 years age. The settlor appoints 2nd trustee to act with her as trustee of the settlement and the power of appointing new trustees shall whilst both the settlor and 2nd trustee act as trustees vest in them jointly and thereafter in the surviving or continuing trustee or trustees hereof for the time being. The settlor declares and and the 2nd trustee hereby acknowledge that the settlement hereby made is irrevocable.
Thank you. That is a bare contingent trust. As to how you can proceed...
Yes please proceed
A bare trust requires the consent of the beneficiaires concerned in order unwind. This is straightforward enough with adults though of course a positive response is not guaranteed. However the position is complicated further where there are children involved as is the case here...
ok so do I have to wait until they are both 18 even though I was not in the right frame of mind when I made the trust?
Because there are children involved it would be necessary to make a court application for permission on your childrens behalf. Such applications are determined in connection with the benefit to the children - i.e. is it in the childs interests for the application to be granted.
ok can you give some examples that would sway a court to be in my favour?
Here is you can show that it is of more benefit to your children that the property is returned to you so you can provide a safe home for them to be brought up in then our application could be successful.
Certainly. Here for example if you could show that tying the property in trust is restricting your ability to give your family the lifestyle you would like because you cannot do A or B or cannot afford C or D then a court could look well on the application.
If I could sell the land and invest in our home we would not have any money worries should we lose jobs in future or I became ill as our mortage is high. would that possibly sway the court?
If on the other hand yu have sufficient assets to support all the reasonable needs of your children without this additional asset and there would be no material advantage to your daughters in unwinding the trust then this is likly to be more challenging.
Yes if you can demonstrate that unwinding the trust would have a material improvement on your daughters which necessarily will include the financial security of your family generally this can be very persuasive. A court will be mindful that there is no point preserving and asset in trust for your children if in doing so your family is bankrupted (I use an extreme example) in the process.
We brought this house when house prices were high and extended and house prices then went down on our street. Since we have not been able to improve the condition as we never have any spare equity. Our oven needs a piece of wood to close it each time and we still have some old wooden windows and the decor is 1970's downstairs. Also with my eldest becoming a teenager we would ideally do with an extension to the rear as we only have a lounge and kitchen downstairs! Would that be enough?
These would appear to be basic things that would benefit your children. If you cannot otherwise afford them these would be good bases on which to seek an order to modify the trust under a court order. If you are proposing to sell the land (notwithstanding the trust) there may be an alternative approach. From what you say the other trustee is willing to cooperate?
Yes my father is in agreement with my needs. what is the alternative approach?
Based on the terms of the trust there is nothing preventing you and your father as the trustee selling the land. The terms of the trust provide that you must hold the monies though on trust for your daughters and it remains the case that you would have to seek a court order to alter that as we have discussed above. However s32 Trustee Act provides the trustees a power of advancement to children for the maintenance and advancement. In other words having liquidated the funds you could choose to hold it in an account or investment vehicle and pay out from time to time towards things that are for the childrens maintenance and wellbeing. This can include maintaining a house they live in though of course there is a fine line between improvements and maintenane and you would have to mindful of that. However this approach may be an attractive way of avoiding a court application and achieving much if not all of the same result.
Is there anything above I can clarify for you?
ok thanks Joshua
A pleasure. I hope the above gives you a means to move forward