How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33829
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
13262538
Type Your Law Question Here...
Clare is online now

Party A wishes to create a trust declaration over some of her

Resolved Question:

Party A wishes to create a trust declaration over some of her equity in her registered home which is subject to a legal charge. The trust is to recognise financial assistance provided over several years (free of any obligation) by her brother. If she does create this:
1. Can she revoke this unilaterally - (a) she may be able to repay him in cash (b) if he dies first she doesn't want the benefit going elsewhere
2. If and when registered at the Land Registry, will it affect any later remortgaging of the property?
Submitted: 1 year ago.
Category: Law
Expert:  Clare replied 1 year ago.
HiThank you for your questionMy name is ***** ***** do my best to help you but I need some further information firstCould you clarify why Party A might wish to withdraw what appears to be a "gift" if her brother dies first?
Customer: replied 1 year ago.
Not sure it's strictly a 'gift' - she wants to create some recognition of the help already given but just to him - not his heirs etc. Also, ideally she doesn't want het brother to know, for now, tha she's doing this
Expert:  Clare replied 1 year ago.
Would a bequest within a Will not be more appropriate?
Customer: replied 1 year ago.
Sorry for the delay - there was a problem with the Just Answer site. In answer to your question,I don't think so. How would that provision in Partyy A's Will help if the brother dies first? Party A is hopeful that in a few years, she will be able to return the monies - if the brother wants/needs!. As such, we are mainly concerned with a short/medium term position inter vivos resolution.
Expert:  Clare replied 1 year ago.
I though of the Will option as it will cover the position if A dies before B since it is clear that if B dies first A does not wish the money to go to any of his potential beneficiariesIf she goes with the Declaration of Trust then it can only be revoked with his agreement and it will indeed have an impact on any remortgage.A gift within a Will - which can be amended in the event that the monies are repaid in lifePlease ask if this will not suffice for some reason
Customer: replied 1 year ago.
Noted. Thanks. Can the trust be 'declared' for a finite period of time, say "for 3 years or until the death of the beneficiary whichever is the sooner"?
Expert:  Clare replied 1 year ago.
Hi
Not without creating an expensive formal trust
Clare
Customer: replied 1 year ago.
What' 'expensive'? Are you able to review a draft? Thanks. Mike
Expert:  Clare replied 1 year ago.
I will happily review a draft - and thousands.
Customer: replied 1 year ago.
Hmmmm:-) Let's begin with a draft! This is attached. My questions are:
(1) Would this constitute a valid trust;
(2) Can it be validly deterimined as per draft Clause 4
(3) If the answers to 1 and 2 are 'yes':
(a)
Customer: replied 1 year ago.
12/11/2015 12:50
Hmmmm:-) Let's begin with a draft! This is attached. My questions are:
(1) Would this constitute a valid trust;
(2) Can it be validly deterimined as per draft Clause 4
(3) If the answers to 1 and 2 are 'yes':
(a) are there any obviouls pitfalls and (b) presumabl any new mortgagee woud simpy ask for a deed of postponement by either or both teh trsitee and the Beneficiary
Expert:  Clare replied 1 year ago.
May I ask - and do please be honest - is there a reason for doing this because it will not stand against Bankruptcy; divorce or other debt
Customer: replied 1 year ago.
Dear Clare, I do not lie or mislead and have been 'honest' - at least not intentionally. The trust is not intended to defeat bankruptcy, divorce, debt or anything else adverse. To be honest, that's all you need to know. Are you now able to answer my last questions. Regards.
Mike
Expert:  Clare replied 1 year ago.
Hi
Having read the draft it simply will not stand as a declaration of Trust if you include paragraph four.
Better to create a separate Legal Charge which would achieve the same result - and could incorporate all the provisions of Paragraph 4
Clare
Customer: replied 1 year ago.
Hi Clare. Final question: As I see it the draft includes the 4 certainties required of a trust. Why is Clause 4 a problem? It offends no rule either legal or equitable so far as I can see. Cheers
Mike
Expert:  Clare replied 1 year ago.
Slight confusion here
Are we now talking about a position where the brother will be aware of and co-operate in the deed?
Customer: replied 1 year ago.
Yes
Customer: replied 1 year ago.
.... to clarify! The Trust is intended to be a birthday surprise for the brother (in about 7 week's time) so the idea is that he will only know of it after it's registered. We can expect him to co-operate although nothg in life is certain! Cheers. Mike
Customer: replied 1 year ago.
Hi Clare
Your last full comment was: "Having read the draft it simply will not stand as a declaration of Trust if you include paragraph four".
My substantive response was: "Final question: As I see it the draft includes the 4 certainties required of a trust. Why is Clause 4 a problem? It offends no rule either legal or equitable so far as I can see. Cheers"I shall be pleased to receive your reply
Thanks and best wishes
Mike
Customer: replied 1 year ago.
Dear Clare. I'm not sure what the position now is. As I see it, I'm still waiting to hear from you as to why draft Clause 4 appears to be so damaging or even fatal to te cretaion of the trust. I've now been asked to rate your services but I can't do that until the question is answered. Is there any problem? I'm away for most of today but I hipe to have your answer when I get back. Many thanks in anticipation. All the best. Mike
Expert:  Clare replied 1 year ago.
I am sorry - you fell off my list and disappearedI suspect that it is a matter of semantics between us.Yes that does create a full trust - it is simply not the kind of document that is usually called a Declaration of Trust in terms of Property law.However it can be registered (despite my reservations) It will certainly effect any remortgage - and it is in fact a Trust where the asset is the share of the property - and the Trust must be registered as a joint owner
Customer: replied 1 year ago.
Thnaks for this. Last bits:-)
(1) How is it that the draft makes the beneficiary a new owner? The deed deals only with the 'equity' - not a legal estate in the property.
(2) Please clarify your 'reservations'.
Thanks
Mike
Expert:  Clare replied 1 year ago.
You wish to Register this Trust.Actually now I think of it - DO you wish to do this?
Customer: replied 1 year ago.
Hi Clare
Registration need not concern you. We seem to have reached a position where you have agreed that my draft would create an effective trust and one which can be limited and/or validly terminated in the vent of any occurrence as provided for in clause 4. That just leaves the two pints last raised for direct reply. Thank you. Mike
Expert:  Clare replied 1 year ago.
The point of the Trust is to create a position where the property is owned by the Trustees for the benefit of people named in the Trust deedNot sure about the second point - please clarify the question!
Customer: replied 1 year ago.
Clare - I don't think this was intended for me! Regards. Mike O'Neill
Expert:  Clare replied 1 year ago.
My apologies - I have no idea how that happened - technology defeats me all too often!
Customer: replied 1 year ago.
I know exactly what you mean - my IT 'stuff' has a life all of its own in which I'm only occasionally allowed to knowingly participate!
Expert:  Clare replied 1 year ago.
What a wonderful way of putting it!
Clare, Solicitor
Category: Law
Satisfied Customers: 33829
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
Clare and other Law Specialists are ready to help you

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Jo C.

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
< Previous | Next >
  • http://ww2.justanswer.com/uploads/EM/emus/2015-7-7_192327_bigstockportraitofconfidentfemale.64x64.jpg Jo C.'s Avatar

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
  • http://ww2.justanswer.com/uploads/BE/benjones/2015-12-1_0437_ennew.64x64.jpg Ben Jones's Avatar

    Ben Jones

    UK Lawyer

    Satisfied Customers:

    11553
    Qualified Solicitor - Please start your question with 'For Ben Jones'
  • http://ww2.justanswer.com/uploads/BU/Buachaill/2012-5-25_211156_barrister5.64x64.jpg Buachaill's Avatar

    Buachaill

    Barrister

    Satisfied Customers:

    1754
    Barrister 17 years experience
  • http://ww2.justanswer.com/uploads/JO/jojobi/2013-3-19_0265_maxlowryphoto.64x64.jpg Max Lowry's Avatar

    Max Lowry

    Advocate

    Satisfied Customers:

    894
    LLB, 10 years post qualification experience
  • http://ww2.justanswer.com/uploads/UK/UKLawyer/2012-4-12_9849_F2.64x64.jpg UK_Lawyer's Avatar

    UK_Lawyer

    Solicitor

    Satisfied Customers:

    750
    I am a qualified solicitor and an expert in UK law.
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    402
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Lawyer

    Satisfied Customers:

    8199
    LL.B (Hons), Higher Prof. Dip. Law & Practice