Q&As

A property is owned by husband (H) and wife (W) as tenants in common. H has died, and W lacks capacity and not in occupation of the property. There is a registered LPA made by W in favour of her children (who are also the PRs in the estate of H). Child 1 (C1) wishes to buy W’s share of the property. Can child 2 (C2), as W’s attorney, sell the share to C1 without an order of the COP? There will be no gift element, and the property will be professionally valued.

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Published on LexisPSL on 03/10/2019

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

  • A property is owned by husband (H) and wife (W) as tenants in common. H has died, and W lacks capacity and not in occupation of the property. There is a registered LPA made by W in favour of her children (who are also the PRs in the estate of H). Child 1 (C1) wishes to buy W’s share of the property. Can child 2 (C2), as W’s attorney, sell the share to C1 without an order of the COP? There will be no gift element, and the property will be professionally valued.
  • Is it necessary to appoint an additional trustee to overreach the interest of H’s estate?
  • Is it necessary for C1 and C2 to make an application to the Court of Protection to appoint an additional trustee?
  • Does the sale breach the attorneys’ fiduciary duties?
  • Conclusion

In the transaction described in this Q&A, the property is held as tenants in common for H’s estate and for W. C1 and C2 (in their dual capacity as executors of H’s estate and LPA attorneys of W) wish to sell W’s share of the property to C1. After the transaction, the property would be held as joint tenants for H’s estate and C1.

Is it necessary to appoint an additional trustee to overreach the interest of H’s estate?

Given that the property is held as tenants in common, we assume there is a Form A restriction on the register. HM Land Registry Practice guide 9: powers of attorney and registered land provides guidance on a sale by joint attorneys of a sole surviving proprietor in this scenario, stating:

‘3. Joint attorneys of a sole surviving proprietor where there is a Form A restriction in the register

Where there is a sole or sole surviving registered proprietor with a Form A restriction in the register and a transfer is executed by their joint attorneys, although two (or more) attorneys have executed the transfer they are attorneys for one proprietor and are not trustees of the legal estate or entitled to be registered as proprietors. The transfer is therefore still effectively by a sole proprietor and is caught by the Form A restriction, and the overreaching provisions of the

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