Q&As

What problems might arise when a deceased spouse’s share in property which is subject to a mortgage passes to a life interest trust?

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Produced in partnership with Lynne Counsell of Addington Chambers
Published on: 29 October 2020
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Severance

There would not be a problem with having severed the Joint tenancy prior to the death of the deceased spouse. Severance can be effected in a number of ways, including notice by one joint tenant to the other during their lifetime. See Precedent: Notice of severance of joint tenancy: Encyclopaedia of Forms and Precedents [83]. It does not have to be by way of deed but can be by written agreement. See, generally, Practice Note: Severance of a joint tenancy.

The life trust and the mortgage

In the absence of a life assurance policy or mortgage protection policy to repay

Lynne Counsell
Lynne Counsell

Barrister, Addington Chambers

Lynne has been in traditional Chancery practice for some thirty years, specialising in probate matters, construction of wills and trusts and also financial services and drafting.

Lynne was for some years counsel for Tower Hamlets, representing them on landlord and tenant cases and counsel for Bedford Building Society representing it on mortgage cases.

Lynne has written or updated over fifty books, including writing the initial volume of Atkin’s Court Forms “Financial Services” and updating Halsbury’s Laws on Injunctions. Lynne was also co-author of two editions of “Insider Trading” and co-editor and one of the writers of “Chancery Practice and Procedure.”

Articles include “Marketing of Investments” for the Law Society Gazette and “The Doctrine of Mutual Wills” for the Trust Quarterly Review. Lynne won one of the few cases on mutual wills in the last fifty years – Charles v Fraser (2010).

Lynne has drafted the standard unit trust for the government of Nigeria, the rules and related documentation for various building societies and clubs, shareholder agreements, company takeovers compliance documentation for certain banks as well as wills and trusts.

Lynne was awarded the 2017 Corporate international Magazine Global Award – “Investment Contracts Barrister of the Year in England”.

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Jurisdiction(s):
United Kingdom
Key definition:
Life interest definition
What does Life interest mean?

An entitlement to trust income or to the use of trust assets, but not the capital. Also called an possession'>interest in possession.

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