Q&As

If a Will leaves a specific legacy of a property free of any mortgage on the property but the deceased only owned a part share of the property at death, are there any general rules of interpretation as to whether the whole of the mortgage would need to be settled from residue or only a proportion in line with the deceased’s share of the property? Would this affect the level of deduction in relation to the mortgage for Inheritance tax purposes?

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Produced in partnership with Aidan Briggs of New Square Chambers

Published on: 03 July 2023

This assumes there are no specific provisions in the Will as to the order in which assets should be applied to pay debts, and also that the mortgage debt does not exceed the value of the property itself.

The starting point is that all of the deceased’s debts must be paid before the estate can be distributed, and (subject to anything in the Will) those debts must be paid first from residue (section 34(3) of the Administration

Aidan Briggs

Barrister and Mediator, New Square Chambers

Described by Chambers & Partners as ‘an exceptional barrister’, Aidan Briggs has established himself as a specialist advocate and advisor for trusts, estates and property disputes. His regular trial experience in the High Court gives him the edge in the courtroom and makes him a favourite for factually complex cases where effective cross-examination may be the difference between winning and losing.

Aidan’s practice covers the full range of private client matters: contested probate and 1975 Act claims, partnership disputes and contentious trusts work (both on- and offshore) as well as proprietary estoppel, commercial landlord and tenant disputes and trusts of land. His cases often involve multiple jurisdictions and issues of domicile.