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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 13590
Experience:  I have been practising for 30 years.
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My husband has discovered he was listed as a trustee on a

Customer Question

My husband has discovered he was listed as a trustee on a deed of variation but he wasnt informed at the time or given a copy of the deed. It now seems 50% of a property should have been held in trust for the deceased children until they were 25. It looks like that didnt happen. What can my husband do now to ensure the children (now adults) receive what was intended for them please?
Assistant: Since estate law varies from place to place, can you tell me where this is?
Customer: Cornwall, UK
Assistant: What documents or supporting evidence do you have?
Customer: A copy of the deed of variation but we need to check if it was signed within 2 years of the deceased death. A will was written along the same lines as the DOV but sadly the deceased passed away before she could sign it. She wanted her half of the house left in trust for the children. The husband has since sold the house and one of the children has reached 25 when he was supposed to get his share (if husband had sold the house or was cohabiting, he has done both)
Assistant: Anything else you want the lawyer to know before I connect you?
Customer: i think thats all
Submitted: 5 days ago.
Category: Law
Expert:  Nicola-mod replied 4 days ago.
Hello,
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Customer: replied 4 days ago.
Please keep trying.
Thank you
Expert:  F E Smith replied 4 days ago.

Good morning. I will assist with your question - be aware this is an email not chat service therefore may be delayed in replying.

who was the deceased?

what is your husband's relationship?

when did the deceased die?

who are trustee's?

Customer: replied 4 days ago.
The deceased was Melanie Tabb
My husband was her first cousin.
She died in 2008.
My husband was only recently informed by Melanie’s mum (neill’s aunt) about the deed of variation and that Neill had been listed as a trustee. He wasnt informed at the time and hadnt seen any paperwork until recently.
We think Melanie’s mum was hoping Alex’s (one of Melanie’s 2 children with Nigel Tabb) would get his share when he turned 25. That hasn’t happened so she has contacted Neill in the hope he can sort the mess out but we have no idea where to start and what the legal position is.
Thank you.
Michelle Vanlint
Customer: replied 4 days ago.
Also I think Nigel sister was also listed as a trustee, I will confirm her name.
Customer: replied 4 days ago.
Sally-Ann Dean is her name
Expert:  F E Smith replied 4 days ago.

Thank you. Can we backpedal to the very beginning please before anybody died because I need-to-know

who then owned the house,

joint tenants or tenants in common

who it was left to in the will and how the will was varied under the deed of variation.

A deed of variation doesn’t get signed by the person who has written the will.

Do you have any of the documentation?

Customer: replied 4 days ago.
This is the answer from my husband.
Customer: replied 4 days ago.
The house was owned by Nigel and Melanie as joint tenants.
I believe the house was left to Nigel and the DOV changed that to be half Nigel and Half the kids (25% each).
Melanie wrote the will. Nigel (beneficiary of will) wrote the deed of variation.
I will scan all docs and email to you.
Customer: replied 4 days ago.
Do you have an email for me to forward the documents to you please?
Expert:  F E Smith replied 3 days ago.

Thank you. You can attach the documents using the paperclip.

However me while:

if the house was owned by Nigel and Melanie as joint tenants and Melanie died, it goes automatically to Nigel under the right of survivorship.

That happens regardless of what it says in the will.

A deed of variation is the wrong document based upon a joint tenancy.

If the property had been tenants in common owned by Nigel and Melanie and Melanie died, then Melanie is part of the house would pass under the terms of her will and if she left it to Nigel, Nigel could then effect a deed of variation to give his newly acquired half of the house which previously belonged to Melanie, to his children.

He would then in effect own half of the house and two children would own one quarter reach.

The only reason why there would need to be a trustee would be to hold the children share of the property on trust for them until they reach 18 (ignore the 25 years for now) and that trustee could actually have been Nigel.

If the children are over 18, then under the rule in Saunders v Vautier if they both agree, they can have their share of the property now.

The 50% share of the property belonging to the children should have been registered in the name of the trustee on behalf of the children. It seems that didn’t happen as you have said.

Your husband was not aware that he was a trustee and therefore he is off the hook.

If the property has been sold by Nigel and Nigel has pocketed the money, then 50% of the money belongs to the children.

It seems that what has happened is that Nigel decided to give half of the house to the children but then changed his mind. He can’t do that although it would appear that the deed of variation leaving half of the property in trust for the children was never registered. It really depends whether the children want to take issue with this now because it could be potentially expensive argument