Leasehold property and inheritance

[phil...@gmail.com]

Hope someone may be able to help with this scenario. A husband and wife together with a child purchase the lease of a flat in the 1990's. Husband dies in 2007 and leaves a will naming the wife as sole beneficiary. The lease then alters to reflect the demise of the husband. The widow dies 6 years later without leaving a will and the child continues to live at the property. There are 2 other children of the couple and my question is would those 2 children (together with the resident lessee) inherit their mother's portion of the estate? I have the leasehold details from the Land Registry so more detail is available if required.

[Nick Odell]

On Thu, 31 Jan 2013 21:50:02 +0000, phil...@gmail.com wrote:

>Hope someone may be able to help with this scenario. A husband and wife together with a child purchase the lease of a flat in the 1990's. Husband dies in 2007 and leaves a will naming the wife as sole beneficiary. The lease then alters to reflect the demise of the husband. The widow dies 6 years later without leaving a will and the child continues to live at the property. There are 2 other children of the couple and my question is would those 2 children (together with the resident lessee) inherit their mother's portion of the estate? I have the leasehold details from the Land Registry so more detail is available if required.

Assuming everything was equal all the way through, the husband, the
wife and the first child each owned one third of the lease. When the
husband died, the child continued to own one third, while the wife now
owns two thirds of the lease. I would presume that each child,
including the child who lives there would inherit equally one-third of
the mother's estate of 2/3 of the lease. Thus the two outsiders would
inherit 2/9 of the lease each and the resident child would also
inherit 2/9, bringing their share up to 5/9. Yes?

Nick

[Stuart A. Bronstein]

Looks exactly right to me, yes.

--
Stu
http://DownToEarthLawyer.com

[Peter Crosland]

On 31/01/2013 21:50, phil...@gmail.com wrote:
> Hope someone may be able to help with this scenario. A husband and wife together with a child purchase the lease of a flat in the 1990's. Husband dies in 2007 and leaves a will naming the wife as sole beneficiary. The lease then alters to reflect the demise of the husband. The widow dies 6 years later without leaving a will and the child continues to live at the property. There are 2 other children of the couple and my question is would those 2 children (together with the resident lessee) inherit their mother's portion of the estate? I have the leasehold details from the Land Registry so more detail is available if required.

The rules of intestacy (no will) are here.


http://www.adviceguide.org.uk/england/relationships_e/relationships_death_and_wills_e/who_can_inherit_if_there_is_no_will___the_rules_of_intestacy.htm


--
Regards Peter Crosland

[Andy Champ]

On 31/01/2013 21:50, phil...@gmail.com wrote:

> Hope someone may be able to help with this scenario. A husband and wife together with a child purchase the lease of a flat in the 1990's. Husband dies in 2007 and leaves a will naming the wife as sole beneficiary. The lease then alters to reflect the demise of the husband. The widow dies 6 years later without leaving a will and the child continues to live at the property. There are 2 other children of the couple and my question is would those 2 children (together with the resident lessee) inherit their mother's portion of the estate? I have the leasehold details from the Land Registry so more detail is available if required.
>

Joint tenants or tenants in common?

Makes all the difference - the child either owns 1/3 or all.

Andy

[phil...@gmail.com]

Thanks for your input Nick. My sister and I are the 2 other children and we were estranged from our parents for 30 and 40 years respectavly. I spoke to my brother for the first time the other night and he said he was sitting pretty on this leasehold property - no mention of my sister or I getting any share in our mother's estate. I wouldn't want to cause my brother any hardship but felt sure that he was wrong in his assumption unless it was gifted to him in her lifetime - but surely that would be recorded at the Land Registry? My sister hasn't mentioned the property to me and I've not asked. Haven't heard a thing from the family solicitors and was wondering what was going on.

[phil...@gmail.com]

Thanks Andy. Those phrases are not mentioned in the leasehold document at the Land Registry - would it be on the freehold part of the documents, and so should I download them?

[Chris R]

>
>
> wrote in message
> news:2d7fb4eb-2378-4efb...@googlegroups.com...

Absence of anything on the leasehold title suggests they were joint tenants,
so that the lease automatically passes to (or rather remains owned by) the
survivor. There would probably be no transfers following the deaths - just a
noting of the deaths, with the deceased being removed. If tenants in common,
you would expect to see wording to the effect that the sole survivor of the
joint tenants cannot give a receipt for capital monies:
http://www.tenminutewill.co.uk/help.cgi?page=am_i_joint_tenant but you need
professional advice to be sure.

http://www.landregistry.gov.uk/public/guides/public-guide-18
--
Chris R

========legalstuff========
I post to be helpful but not claiming any expertise nor intending
anyone to rely on what I say. Nothing I post here will create a
professional relationship or duty of care. I do not provide legal
services to the public. My posts here refer only to English law except
where specified and are subject to the terms (including limitations of
liability) at http://www.clarityincorporatelaw.co.uk/legalstuff.html
======end legalstuff======

[Man at B&Q]

On 31 Jan, 23:25, Andy Champ <no....@nospam.invalid> wrote:

> On 31/01/2013 21:50, phil45...@gmail.com wrote:
>
> > Hope someone may be able to help with this scenario. A husband and wife together with a child purchase the lease of a flat in the 1990's. Husband dies in 2007 and leaves a will naming the wife as sole beneficiary. The lease then alters to reflect the demise of the husband. The widow dies 6 years later without leaving a will and the child continues to live at the property. There are 2 other children of the couple and my question is would those 2 children (together with the resident lessee) inherit their mother's portion of the estate? I have the leasehold details from the Land Registry so more detail is available if required.
>
> Joint tenants or tenants in common?

The husband and wife, or the mother and child following the husbands
death?

There's no mention that the child was a "tenant" in either of these
senses.

> Makes all the difference - the child either owns 1/3 or all.

There's no will so, unles the property was gifted to the child before
the mothers death, surely the other children have good claim to 1/4
each.

MBQ

[The Todal]

On 1/2/13 10:05, Man at B&Q wrote:
> On 31 Jan, 23:25, Andy Champ <no....@nospam.invalid> wrote:
>> On 31/01/2013 21:50, phil45...@gmail.com wrote:
>>
>>> Hope someone may be able to help with this scenario. A husband and wife together with a child purchase the lease of a flat in the 1990's. Husband dies in 2007 and leaves a will naming the wife as sole beneficiary. The lease then alters to reflect the demise of the husband. The widow dies 6 years later without leaving a will and the child continues to live at the property. There are 2 other children of the couple and my question is would those 2 children (together with the resident lessee) inherit their mother's portion of the estate? I have the leasehold details from the Land Registry so more detail is available if required.
>>
>> Joint tenants or tenants in common?
>
> The husband and wife, or the mother and child following the husbands
> death?
>
> There's no mention that the child was a "tenant" in either of these
> senses.

The Land Registry office copies should show who the proprietor is, and
if it still shows the husband and wife as the proprietors it ought to
show whether they are joint tenants or tenants in common.

You said the "lease" alters to show the demise (presumably you mean
death, because "demise" is a legal term with special relevance to
leases) of the husband. Does the Land Registry entry show the wife as
sole proprietor?

[Chris R]

>
>
> "Man at B&Q" wrote in message
> news:32d2d7e8-7253-4d0b...@b11g2000yqh.googlegroups.com...

>
> On 31 Jan, 23:25, Andy Champ <no....@nospam.invalid> wrote:
> > On 31/01/2013 21:50, phil45...@gmail.com wrote:
> >
> > > Hope someone may be able to help with this scenario. A husband and
> > > wife together with a child purchase the lease of a flat in the 1990's.
> > > Husband dies in 2007 and leaves a will naming the wife as sole
> > > beneficiary. The lease then alters to reflect the demise of the
> > > husband. The widow dies 6 years later without leaving a will and the
> > > child continues to live at the property. There are 2 other children of
> > > the couple and my question is would those 2 children (together with
> > > the resident lessee) inherit their mother's portion of the estate? I
> > > have the leasehold details from the Land Registry so more detail is
> > > available if required.
> >
> > Joint tenants or tenants in common?
>
> The husband and wife, or the mother and child following the husbands
> death?
>
> There's no mention that the child was a "tenant" in either of these
> senses.

"A husband and wife together with a child purchase the lease..."

>
> > Makes all the difference - the child either owns 1/3 or all.
>
> There's no will so, unles the property was gifted to the child before
> the mothers death, surely the other children have good claim to 1/4
> each.
>

Not if the title passes by survivorship.

[steve robinson]

The freehold documents will identify the owner of the property, your
family members only own a lease, the property does not belong to them ,

I suggest you contact the freeholder who should have copies (or access
to) all the relevant documents related too the lease.

[R. Mark Clayton]

"Stuart A. Bronstein" <spam...@lexregia.com> wrote in message
news:XnsA159974A3DE6Es...@130.133.4.11...

It depends on whether they are joint tenants of tenants in common.

In the alternative view, when the husband dies his widow and child become
joint owners and when the widow dies the child becomes the sole owner and
the other children get nothing.

[Francis Davey]

Le vendredi 1 février 2013 10:15:03 UTC, The Todal a écrit :
>
> The Land Registry office copies should show who the proprietor is, and
>
> if it still shows the husband and wife as the proprietors it ought to
>
> show whether they are joint tenants or tenants in common.

No, sorry, that's deeply confused.

There are two questions here: (1) what is the *legal* ownership of the leasehold estate and (2) what is the beneficial or equitable ownership of the same leasehold estate.

Jointly owned land is always held on trust. The land registry will only show the legal interest. The legal interest is always joint - you cannot have legal tenants in common (at least not since 1926).

The legal interest will almost certainly work like this:

[1] Initially the mother and father will be joint legal owners (assuming the child was really a "child" and under 18 - children cannot be legal owners of land)

[2] When the father died the legal ownership will be the mother's only. On her death that sole legal ownership will pass to her estate (if probate was granted, to her personal representatives).

The proprietorship register should be updated to reflect all that, but that is not the end of the story. What the OP wants to know about is beneficial ownership. Here the crucial question is: were the beneficial interests under the trust of land created at [1] above joint or in common?

The short answer is of course "we don't know". We don't have enough information. In the simple situation where A and B are joint legal owners the law will presume they are also joint beneficial owners ("equity follows the law") but there is also a child involved as well.

The father and mother may have (should have, but most don't) executed some kind of declaration of trust. If they did - that will tell us the answer. If they didn't there may be external evidence to suggest they intended a holding in common not jointly. There must be _some_ external evidence or we would not have known about the child having an interest (since the child won't appear on the title).

The entry of some kind of standard form restriction (these were more common at some periods than others) might be an indication of the beneficial interests but it is unlikely - especially if this dates back some time - to determine the interests.

So, if there was discussion at the time or contemporaneous documentation that might gives us a clue, otherwise we have to go with the presumption of joint beneficial tenancy.

If there was a tenancy in common as to 1/3 the property each, then Nick's analysis basically goes through. If the beneficial interests were held jointly that is quite a different matter.

[1] On the father's death, the mother and child will be jointly entitled beneficially.

[2] On the mother's death, the child will be sole beneficial owner (and entitled to require the leasehold estate is conveyed to them).

But of course the joint beneficial interest *might* have been severed at some stage. If it was then the analysis would have to be adjusted to pick up at that point. I can't off-hand recall whether a specific gift of a share in property in a will severs at that stage (if that is what the father did - though its unlikely).

Anyway, I suggest professional advice with all the documents you can muster.

Francis

[Stuart A. Bronstein]

"R. Mark Clayton" <nospam...@btinternet.com> wrote:

> It depends on whether they are joint tenants of tenants in
> common.
>
> In the alternative view, when the husband dies his widow and
> child become joint owners and when the widow dies the child
> becomes the sole owner and the other children get nothing.

Good point, that is a possibility.

I thought it unlikely, though, since OP implied (though did not
state) that the initial tranfer of title after the father died was
based on his will rather than operation of law.

In addition, I don't know about others but at least I don't recommend
that parents not add their children as joint tenants as a way to
transfer property when they did. That action could cause some
problems if the parents wanted to, for example, sell one house and
buy another if the child either disagreed or was under-age. Or if
the child were to run up large debts while the parents were alive,
the child's debtor could gain some rights in the house at that time.

--
Stu
http://DownToEarthLawyer.com

[Stuart A. Bronstein]

phil...@gmail.com wrote:

> Thanks for your input Nick. My sister and I are the 2 other
> children and we were estranged from our parents for 30 and 40
> years respectavly. I spoke to my brother for the first time the
> other night and he said he was sitting pretty on this leasehold
> property - no mention of my sister or I getting any share in our
> mother's estate. I wouldn't want to cause my brother any
> hardship but felt sure that he was wrong in his assumption
> unless it was gifted to him in her lifetime - but surely that
> would be recorded at the Land Registry? My sister hasn't
> mentioned the property to me and I've not asked. Haven't heard a
> thing from the family solicitors and was wondering what was
> going on.

Have you gone to look at the Land Registry? What does the last deed
say about the title of your mother and brother? As R. Mark
indicated, if it shows they were joint tenants (rather than tenants
in common) then he likely is the sole owner, even if his current
title isn't yet reflected in the registry.

--
Stu
http://DownToEarthLawyer.com

[Francis Davey]

Le vendredi 1 février 2013 15:10:10 UTC, Stuart A. Bronstein a écrit :
>
>
> Have you gone to look at the Land Registry? What does the last deed
>
> say about the title of your mother and brother? As R. Mark
>
> indicated, if it shows they were joint tenants (rather than tenants
>
> in common) then he likely is the sole owner, even if his current
>
> title isn't yet reflected in the registry.
>

See my earlier post on the subject: the land registry only records legal ownership and that can only be joint.

Francis

[Stuart A. Bronstein]

Yes, thank you. It was very informative, and what I wrote turns out
to have been incorrect.

--
Stu
http://DownToEarthLawyer.com

[The Todal]

You may be right for all I know, but when you apply to the Land Registry
to register a title you have to show on the transfer deed whether the
proprietors are joint tenants or tenants in common.

I haven't noticed whether the office copies of the title actually show
this information though.

[Janet]

In article <XnsA15A47CE1D44Bs...@130.133.4.11>,
spam...@lexregia.com says...

Or, the child might marry divorce or die, bringing an inlaw's rights
into the equation.

Janet

[Martin Bonner]

On Friday, February 1, 2013 3:05:02 PM UTC, Stuart A. Bronstein wrote:
> "R. Mark Clayton" <nospam...@btinternet.com> wrote:
>
> > It depends on whether they are joint tenants of tenants in
> > common.
> >
> > In the alternative view, when the husband dies his widow and
> > child become joint owners and when the widow dies the child
> > becomes the sole owner and the other children get nothing.
>
> Good point, that is a possibility.
>
> I thought it unlikely, though, since OP implied (though did not
> state) that the initial tranfer of title after the father died was
> based on his will rather than operation of law.
>
> In addition, I don't know about others but at least I don't recommend
> that parents not add their children as joint tenants as a way to
> transfer property when they did.

Is that the same as "I recommend that parents add their children as joint
tenants ..." (or at least very similar), or is there one too many "not"s
in that sentence.

> That action could cause some
> problems if the parents wanted to, for example, sell one house and
> buy another if the child either disagreed or was under-age.

That suggests the latter.

[Stuart A. Bronstein]

Martin Bonner <martin...@yahoo.co.uk> wrote:

>> In addition, I don't know about others but at least I don't
>> recommend that parents not add their children as joint tenants
>> as a way to transfer property when they did.
>
> Is that the same as "I recommend that parents add their children
> as joint tenants ..." (or at least very similar), or is there
> one too many "not"s in that sentence.

Sorry, yes, you're right - one too many "nots." I do not (normally)
recommend adding children as joint tenants.

>> That action could cause some
>> problems if the parents wanted to, for example, sell one house
>> and buy another if the child either disagreed or was under-age.
>>
> That suggests the latter.

Right.

--
Stu
http://DownToEarthLawyer.com

[Chris R]

>
>
> "Francis Davey" wrote in message
> news:6337ef29-4b3f-4449...@googlegroups.com...

There is normally a Form A restriction when the land is held as tenants in
common. It just isn't obvious to reader what that means - it's intended to
stop the sole survivor of tenants in common selling the land and absconding
with the money.

[Francis Davey]

Le vendredi 1 février 2013 17:40:01 UTC, The Todal a écrit :
>
> You may be right for all I know, but when you apply to the Land Registry
>
> to register a title you have to show on the transfer deed whether the
>
> proprietors are joint tenants or tenants in common.
>

Its a "recent" (in property law terms) practice. Depending on how long ago all this happened there may have been no such question.

>
>
> I haven't noticed whether the office copies of the title actually show
>
> this information though.

They don't, but they _may_ show a restriction (eg a Form A restriction). There's been a slow evolution of land registry practice which has made it more useful over the years.

Francis

[phil...@gmail.com]

Thanks to yourself and the other contibutors.

Here is a redacted copy of what is stated in the leasehold document at the Land Registry:

<<<<Quote>>>>

REGISTER EXTRACT
Title Number : xxxxxxx
Address of Property : XXXXXXXXXXXXX, London
Price Stated : Not Available
Registered Owner(s) : [THE WIDOW AND SON - BOTH RESIDING AT THE ADDRESS]
Lender(s) : None

A: Property Register
This register describes the land and estate
comprised in the title. Except as mentioned below,
the title includes any legal easements granted by
the registered lease but is subject to any rights
that it reserves, so far as those easements and
rights exist and benefit or affect the registered
land.

[LONDON BOROUGH NAMED]

1 (XX.XX.1990) The Leasehold land shown edged with red on the plan
of the above Title filed at the Registry and being xxxxxxxxxxx, London xxxxxxxx.
NOTE 1: As to the part numbered 1 on the filed plan, only the
third floor flat is included in the title.

NOTE 2: As to the part numbered 2 on the filed plan, only the
second and third floor flat is included in the title.

2 (XX.XX.1990) Short particulars of the lease(s) (or under-lease(s))
under which the land is held:
Date : X XXXXX 1990
Term : 125 years from XX XXXXXXXX 1988
Rent : £10
Parties : (1) The Mayor and Burgesses of the London Borough of XXXXXXXXXX

(2) [HUSBAND, WIFE, AND SON]

3 (XX.XX.1990) Where relevant, the provisions contained in the
earlier documents or registers referred to in the above deed are
set out in the registers of this title.

4 (XX,XX.1990) The above mentioned Lease is made pursuant to Part V
of the Housing Act, 1985 and the land has the benefit of and is
subject to the easements and rights specified in paragraph 2 of
Schedule 6 of the said Act.

5 (XX.XX.1990) There are excepted from the effect of registration
all estates, rights, interests, powers and remedies arising upon,
or by reason of, any dealing made in breach of the prohibition or
restriction against dealings therewith inter vivos contained in
the lease.

6 Unless otherwise mentioned the title includes any legal easements
granted by the registered lease(s) but is subject to any rights
that it reserves, so far as those easements and rights exist and
benefit or affect the registered land.

7 (XX.XX.2008) The landlord's title is registered.


B: Proprietorship Register
This register specifies the class of title and
identifies the owner. It contains any entries that
affect the right of disposal.

Title absolute
1 (XX.XX.1990) PROPRIETOR: [THE WIFE AND SON].
End of register

<<<<End Quote>>>>

Hope the above makes things clearer :)

[Chris R]

>
>
> "Francis Davey" wrote in message

> news:942ae9d4-cd75-4b37...@googlegroups.com...
>
> Le vendredi 1 f�vrier 2013 17:40:01 UTC, The Todal a �crit :

I'm fairly sure that what is now called a Form A restriction was normal when
I learned registered conveyancing over 30 years ago. It's quite possible
that many tenancies in common do not have one, though I think any solicitor
who was instructed to create a tenancy in common and did not apply for a
restriction would be negligent. Registration is less likely if joint
tenancies are severed after their original creation. I agree, though, that
it isn't determinative, at least by its absence. If a Form A restriction is
present, the survivor would have an evidential hill to climb to show that
the owners were joint tenants in equity.

[Chris R]

>
>
> wrote in message
> news:9a8b34a7-6e8b-485c...@googlegroups.com...

There is no Form A restriction in the quoted extract, so the probability is
that this was a joint tenancy in equity which passes by survivorship. You
would need other evidence to say that this was not the intention when the
arrangement was created, or that the parties changed their minds at a later
date and "severed" the joint tenancy. Was the property mentioned
specifically in the will?

See eg
http://www.lawgazette.co.uk/in-practice/methods-severing-a-joint-tenancy

[Francis Davey]

Le samedi 2 février 2013 10:15:02 UTC, Chris R a écrit :
> >
>
> I'm fairly sure that what is now called a Form A restriction was normal when
>
> I learned registered conveyancing over 30 years ago. It's quite possible
>
> that many tenancies in common do not have one, though I think any solicitor
>
> who was instructed to create a tenancy in common and did not apply for a
>
> restriction would be negligent. Registration is less likely if joint
>
> tenancies are severed after their original creation. I agree, though, that
>
> it isn't determinative, at least by its absence. If a Form A restriction is
>
> present, the survivor would have an evidential hill to climb to show that
>
> the owners were joint tenants in equity.
>

There's some discussion of the history of land registry practice by Lade Hale in Stack v Dowden (one of the leading cases on this question - so worth a read), starting at paragraph 50:

http://www.bailii.org/uk/cases/UKHL/2007/17.html

I have explained how the law works. The OP would need evidence to displace the presumption of joint beneficial ownership.

Francis

[Chris R]

>
>
> "Francis Davey" wrote in message

> news:d9ac173b-e8dd-4d02...@googlegroups.com...
>
> Le samedi 2 f�vrier 2013 10:15:02 UTC, Chris R a �crit :

Interesting case. We are agreed that in the absence of a Form A restriction
(or its 1990 equivalent) the case turns on any other evidence. As the court
says, its absence is more likely to indicate a joint tenancy intention when
the conveyancing was done professionally.

I do think there is scope for injustice by the approach of looking for the
parties' intentions in their course of conduct and, inevitably, the ex post
facto evidence of one of them. I've always held property, bank accounts and
investments jointly with my wife, as true joint tenants; but now if you
don't document that intention, the court is quite likely to come along later
and re-interpret the intent on thin evidence.

[RobertL]

On Friday, 1 February 2013 12:35:02 UTC, R. Mark Clayton wrote:


> It depends on whether they are joint tenants of tenants in common.

> In the alternative [Joint Tenants] view, when the husband dies his widow and > child become joint owners and when the widow dies the child becomes the sole owner and the other children get nothing.

Well, they presumably get the intestacy-defined proportion of the rest of the estate. That might not be nothing.

Robert

[RobertL]

On Monday, February 4, 2013 3:10:02 PM UTC, Anthony R. Gold wrote:

> On Mon, 04 Feb 2013 12:50:02 +0000, RobertL <rober...@yahoo.com> wrote:

> > Well, they presumably get the intestacy-defined proportion of the rest of the estate. That might not be nothing.
>

> That alternative view had nothing to do with whether the husband or widow
> had made wills or had died intestate. In the case of joint tenancies the
> ownerships of the earlier decedents will not pass to or through their
> estates but will pass directly to the surviving tenant(s).

I agree. What I meant was that other things in the estate (other than the property in question) will still pass via the will/intestacy rules.

Robert

[phil...@gmail.com]

On Saturday, February 2, 2013 10:35:02 AM UTC, Chris R wrote:
> >
>
> >
[snip]

>
>
>
> There is no Form A restriction in the quoted extract, so the probability is
>
> that this was a joint tenancy in equity which passes by survivorship. You
>
> would need other evidence to say that this was not the intention when the
>
> arrangement was created, or that the parties changed their minds at a later
>
> date and "severed" the joint tenancy. Was the property mentioned
>
> specifically in the will?
>
>
>
> See eg
>
> http://www.lawgazette.co.uk/in-practice/methods-severing-a-joint-tenancy
>
> --
>
> Chris R
>
>
>

Thanks Chris. My sister got round to discussing the property situation and believes that our brother will inherit the property - I presume she has had that confirmed by the solicitor. I have now heard from the solicitors and in their letter mention "monies and property" - by "property" I now presume that my sister and I will inherit our mother's Zimmer frame in equal shares :)

Thanks to all those who contributed to this thread.

[Percy Picacity]

Most likely it belongs to the NHS and you should really return it.
Sorry to disappoint you.

--

Percy Picacity