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Buachaill, Barrister
Category: Law
Satisfied Customers: 10976
Experience:  Barrister 17 years experience
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Father died in 1991. He had two sons, the elder being named

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Father died in 1991. He had two sons, the elder being named as executor and trustee. No mention is made of the younger son. At the time of the father's death there was a house and a small amount of money left. The will went to probate administered by a solicitor.
The will states "my trustee shall hold the residue of the said moneys in trust for all or any of my children or child living at my death if more than one in equal shares as tenants in common"
The will also states " my trustee may as well after as during the administration of my estate exercise the power of appropriation conferred by the Administration of Estates Act 1925 without obtaining any of the consents required by that Act"
The younger son died this year. No mention was made of the property in his will. The younger son never mentioned the house or the will during his lifetime. The elder son moved into the house in 1991 and lives there now.
The deeds of the house give ASSENT to the elder son and all the solicitors letters are addressed to the elder son. The house is not on the land registry roll for some reason.
Does the elder son own the house outright? Do the younger son's children have any claim on the house if it were to be sold?
1. Essentially, the legal position here is that in 1991, the elder son held the property as trustee in trust for both himself and the younger son as tenants in common. As the brothers were tenants each held a one half share in the property. When the younger son died, he still owned a half share in the property, UNLESS, he had by agree ment ceded that half share to his elder brother. The elder brother cannot possess the property absolutely, in adverse possession, against the younger son, because a trustee cannot get adverse possession against his beneficiary. So the half share the younger son held in the property as tenant in common still subsists as of his date of death and forms part of his estate to be devolved according to his will. If his will does not mention his half share, then it will fall into the residue clause in the will. However, before you get your hopes up too much, you need to check the Registry of Deeds to see if any subsequent deed was registered after 1991, which might have dealt with the younger son's interest. There is the possibility that there was some subsequent dealing or some ceding by the younger son of his interest, as 25 years is a very long time.
Customer: replied 2 years ago.
thanks for your reply. It is very helpful.You mention the residue clause in the will - what does that mean in respect of the elder brother as the younger brother never mentioned the will at all and his will only mentions savings accounts, no mention of property.
Also the Registry of Deeds - what should we be looking for re this and can I find it online.
Customer: replied 2 years ago.
Another thought is that if the house was to be registered with the land registry and the elder brother has assent would the house be in his name only?
2. You are getting confused here. When I make reference to the residue clause in a will, I am referring to the residue clause in the will of the younger brother, as he is the one who has died. Where an asset of a testator is not dealt with by way of specific bequest or by way of general bequest, then it falls into the residuary clause in the will. namely the clause at the end of a will which deals with everything which has not been dealt with so far in the will. So the half share in the property of the younger brother is dealt with by means of this residue clause in the will.
3. There were and are five Registry of Deeds in England & Wales. They still contain the title ownership of all unregistered land in England & Wales. As the house was not registered in the Land Registry,t his means it is unregistered land and is dealt with by means of the Registry of Deeds. This is where you will find the ownership details affecting this house. here is a link to the West Yorkshire Registry of Deeds. However, you should search on the web for the appropriate one depending on where the house is located.
4. Finally, the elder brother cannot register a house in his own name if he does not own it. In order to register a house in the Land Registry, you need to show a good root of title ie a chain of title ownership over the years and maybe centuries. Here the elder brother could not do that. HOwever, you should search against his name in the Land Registry if you are suspicious that this might have happened. However, unless the trust creation will gave this ability it is unlikely to have happened.
Customer: replied 2 years ago.
thank you for your reply. Am just wondering why a will was written in such a way to make one brother a trustee, not even naming the other brother and yet they are made tenants in common with the younger having half share? Why not make the will naming them both clearly so that the assets could be divided?. Presumably the elder brother's trusteeship continues until his death so he can stay in the property until then without challenge? Also if he wanted to sell the property would the other brother's children be entitled to half share considering that elder brother has lived there for the last 24 years and worked on the property since the 70's with no input from the dead brother, either financially or in any practical way.
3. One can only guess why the will was framed in the way it was. Such speculation is worthless as the situation is now as it is. Secondly, just because the elder brother is trustee does not permit him to remain in the property until he dies to the exclusion of the younger brother or of the younger brother's family. In strict point of law, the elder should be paying the younger brother and his estate a rent for occupation of the other half of the premises which he does not own. Thirdly, the younger brother's estate and his descendents would be entitled to a half share of any proceeds on a sale as they own half. It makes no difference that the elder brother might have worked on the house since the 70s. There might be a rateable adjustment for this fact, but nothing large.
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