Tenency in common voided old trust. It's a mess.

[dance621]

Hi, my mum and her partner set up a trust whereby half the house would be put into trust if one of them died. A couple of years later they moved house but when they did so they bought the new house as tenency in common.

My Mum's partner sadly died suddenly a couple of months ago and the solicitor has said that the tenancy in common is dominant to the trust so the trust is void.

Mum wants to reinstate the trust but the offspring of her husband are being very awkward and pushing for more than my mum feels the original trust should give them.

So my question is, does mum have to listen to their concerns? Can the offspring try to take Mum to court if they are not happy with the new trust Mum has written up?

They have not made their position entirely clear but I feel that are after some of the excess money that was left over from the sale of the old house and the purchase of the cheaper new house (maybe 70k) which was in their joint account.

Are there any cases that have considered this issue? The last thing my mum needs after losing her husband is a massive and expensive courtroom drama.

Many thanks.

J

Your poor mum. Were they married? If the trust we lement us void is the whole will void? What does his will state? Does he leave assets to his dc or your dm?

There isn't enough detail here to answer your questions. What does the solicitor say?

Solicitor says that the trust is void, the offspring are currently entitled to nothing but could contest, I suppose on grounds that the tenency in common was signed without realising that it would destroy the trust. Mum wants to reinstate the trust but based on the house they were living in when husband died and not the previous house when trust was written. She thinks that was the wishes of her late husband. Mum is in her late 70s and really doesn't need this right now. This can't be the first case where a tenency in common has been contested? Is there a test case that anyone can point to?

I doubt they will be challenging the joint tenancy as such.

They may be able to challenge the actions of the trustees that ended the trust but, without knowing the terms of the trust, that is impossible to tell.

They may be able to argue that father's will is invalid on the basis that it did not reflect his intentions.

They could also try an Inheritance Act claim against their father's estate but that is unlikely to succeed unless they were financially dependent on him.

Every case turns on the facts. No-one can point to any relevant cases without a lot more detail than you have posted (or, indeed, should post).

I feel that are after some of the excess money that was left over from the sale of the old house and the purchase of the cheaper new house (maybe 70k) which was in their joint account.

If one party to a joint account dies, the surviving partner automatically becomes the owner of the money in the account. Provided it is a genuinely joint account they have no claim, it is now your mum's.

@Feedingthebirds1

I feel that are after some of the excess money that was left over from the sale of the old house and the purchase of the cheaper new house (maybe 70k) which was in their joint account.

If one party to a joint account dies, the surviving partner automatically becomes the owner of the money in the account. Provided it is a genuinely joint account they have no claim, it is now your mum's.

If the money shouldn't have been in the account in the first place, e.g. because the trustees have acted contrary to the terms of the trust, the children have a claim.