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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10623
Experience:  Barrister 17 years experience
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My mother has recently died and has appointed myself, my

Customer Question

HI there - my mother has recently died and has appointed myself, my brother and my sister as her executors. However, she has also created a trust allowing me to stay in her home for up to 2 years. (The reason for this is that I gave up my life in New Zealand to care for her and she wanted to give me the ability to sort myself out before heading back to NZ.) Wording in the will is: " The Trustees shall allow (me) to reside in my House and to have the use of the Contents for a period of TWO YEARS after my death..." I am liable for "all outgoings in respect of (the house) and keep it in good repair and shall keep it (and the Contents) insured comprehensively, etc"
My problem is that my brother & sister now feel that they are legally entitled to come to the house at any time they choose and to stay here whenever they wish. They are also wishing to impose conditions on whether I can have people to stay and how my cat has to behave.
Do they have this right? To my mind, my mother intended this to be treated as my home for however long I stay here which would imply that I have the right to determine who gets to come here and stay overnight.
Can you advise me please? Thanks very much, Sue
Submitted: 1 year ago.
Category: Law
Expert:  Buachaill replied 1 year ago.

1. Dear Sue, it sounds as if you are being put upon by your brother and sister. However, the solution is to simply change the locks on the house. The trust gives you the right to reside there exclusively. You don't have to allow your brother and sister to come and go when they want. If they are trustee or executors, this gives them no right to interfere with the trust property which is in the possession of you, the beneficiary of the trust. So you can exclude them as you wish.

Expert:  Buachaill replied 1 year ago.

2. Additionally, your brother and sister have no right to impose conditions on your occupancy of the trust property. You are free to do what you want with the trust property include have whoever you want there.

Expert:  Buachaill replied 1 year ago.

3. If there is a row about this issue, I suggest you get yourself your own solicitor and formally write to your brother and sister setting out the terms of the trust and asking them to desist from interfering with the operation of the trust. Ultimately, you must stand your ground and insist on your rights.

Expert:  Buachaill replied 1 year ago.

4. Be aware that your brother and sister's position as executors gives them no right to impose conditions or to come and go when they want. If they are trustees, there is an express rule that prevents them from benefiting or interfering with trust property.

Expert:  Buachaill replied 1 year ago.

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Customer: replied 1 year ago.
Hi again - thank you for your previous answer. Do you know when the trust would begin - i.e. would it be on the date of my mother's death or when probate has been granted? I have lived in mum's house as her carer for the past 28 months.
Customer: replied 1 year ago.
Hi again - I entered a further question re when the trust comes/came into effect. Mum's wording is "I have provided for Sue to be able to continue to live in my property for a period of 2 years after my death" which to me indicates that the property became trust property on August 19, the date mum passed away, so my right to occupancy under the trust began on that day. My siblings believe that the trust doesn't begin until probate has been granted, i.e. they can still enter the house when they like until then. Can you please clarify? Thanks very much.
Expert:  Buachaill replied 1 year ago.

6. Dear Sue, a will speaks from the date of death. Accordingly, here the trust came into force once your mother died. It is not correct, as your siblings suggest, that they are not subject to the will until they take out probate. Your siblings are behaving badly here and you can insist that they are excluded from the house.

Customer: replied 1 year ago.
Thank you very much!
Best regards
Sue
Expert:  Buachaill replied 1 year ago.

7. You are welcome!