Q&As

A and B held a property as tenants in common. A died leaving their interest in the property to their two children, C and D subject to a life interest trust of A’s share in favour of B. B has lost capacity and there is a registered lasting power of attorney appointing C and D jointly. How can the parties update the register so that the legal interest is held by B, C and D?

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Published on LexisPSL on 30/11/2018

The following Private Client Q&A provides comprehensive and up to date legal information covering:

  • A and B held a property as tenants in common. A died leaving their interest in the property to their two children, C and D subject to a life interest trust of A’s share in favour of B. B has lost capacity and there is a registered lasting power of attorney appointing C and D jointly. How can the parties update the register so that the legal interest is held by B, C and D?
  • Appointment of new trustee to hold the legal title
  • Trustee lacking mental capacity
  • Acting as trustee under a lasting power of attorney

In this situation, the tenants in common would have registered a standard Form A restriction.

Appointment of new trustee to hold the legal title

On the death of a joint proprietor, where the property was held as tenants in common, only the beneficial interest passes to their personal representatives. The interest of a deceased person under a tenancy in common, where another joint owner survives the deceased, is an interest ceasing on their death (see Commentary: Deeming provisions in relation to real estate: Halsbury’s Laws of England [948]). As the legal interest was held (and could only be held) by A and B as joint tenants, A’s interest in the legal estate ceases on their death.

Following the death of A therefore, B will be the sole legal proprietor holding the beneficial interest on trust for themself and their children as tenants.

If the legal interest is to be transferred so that it is held on trust by B, C and D, then C and D will need to be appointed as new trustees. This can be done by way of a TR1 (see LRPG, in particular paragraph 7.2.1, Appointment and discharge of trustees—Using a transfer).

The TR1 must be entered into by the existing trustees or registered proprietors. When a trustee has died, an application to remove the name from the register, or to register a transfer to,

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