Can our father change an Irrevocable Trust?

by Readers Question

16:55 PM, 18th February 2020
About 7 months ago

Can our father change an Irrevocable Trust?

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Can our father change an Irrevocable Trust?

The question involves a trust set up by my father on his home. Please bear with me I do think it is important to put the background to the story in as it is quite complex.

My father set up a trust about 10 years ago. The purpose of this trust was to provide a home for my sister who is now 59.

On our fathers death the trust gave a lifetime tenancy to my sister.
The trustees of the trust were myself my brother and my father.
On our sisters demise the property was to go to my brother and myself.

My father is now 88 years old and is very frail.

The background to this is that my sister has always lived with my mother and father in the family home. There has always been a difficult relationship with our sister and other members of the family. She has always been extremely difficult to get on with. We believed it was because she had bouts of ill health which made it difficult for her to maintain relationships.

About six months after our mother died our father downsized and bought his present home. It was a smaller and more manageable house and he owned the property outright. Our sister had no financial interest in the property. He gave his consent and allowed our sister to live with him at this address without charging her rent. This house is now worth around £250k.

Our sister has not worked since her early twenties and her income has always come from government benefits. At great expense to himself and over many years he has bought, insured and maintained for our sister her cars, her clothes, her food and provided a roof over her head.

Over the years all the immediate members of his family were excluded from his home by our sister. This included myself, my brother, our wives and all his grandchildren who were unable to go to his house and visit him. She made it impossible for him to overrule her and was unreasonable to his wishes for her to let his family visit and he felt powerless to change her mind. The only way he could see other members of his family was to visit them in their homes.

This put a strain on his mental and physical health. He constantly made excuses for her behaviour. Eventually the strain got too much and he had thoughts of feeling suicidal and he was referred from A & E and admitted into a Psychiatric Unit in March 2015 for a period of two weeks. The Psychiatrist he was under told him that the biggest cause of his anxiety was the situation he was living in. He felt the pressure from living with our sister was the biggest cause of is anxiety and depression. He was discharged and went under the care as an outpatient of a community Psychiatrist who also believed his problems were ‘situational’.

Despite our efforts as a family to intervene by getting outside agencies such as social services involved, he continued to make excuses for her behaviour.

He now believes this was the wrong thing for him to do. He was being isolated and being kept alone a lot of the time. He visibly lost weight. He was constantly being bullied and shouted at. He was being financially manipulated and his mail especially his bank statements were being intentionally withheld from him.

He would give our sister £100 to spend on groceries and household expenses, such as cleaning products each week. She didn’t like to budget and became aggressive when he confronted her about going over budget. She would shout at him and he would often go into his room and cry. He eventually found multiple bank statements that went back over many months that were addressed to him in our sister’s room. He now realises for a long time our sister had been spending a lot of his money without his permission.

The situation came to a head on his 88th birthday. Our sister was drinking whisky heavily and her behaviour towards him was unacceptable and when he tried to remove the whisky bottle from her possession, she became aggressive and fought with him and he got hurt.

He immediately contacted us, and the police were called and our sister was arrested for a Section 47 Assault and Controlling and Coercive Behaviour and she was removed from the home.

He was so fearful of her returning to his house. This was a turning point for him, and he realised he could no longer live with her anymore.
He felt that he needed protecting from his daughter, so he applied to the Family Court and was granted an emergency Non Molestation Order and Occupation Order.

He now believes that our sister for many years has taken advantage of him, abused, isolated and stolen from him. She had not cared for him.

He has thought long and hard how to cope with this situation when making his will and at the same time be fair to his three children. However, he now cannot excuse nor will he now excuse our sister’s behaviour to him and all his family.

He now believes that the trust that he originally set up in good faith is NOT now both proportionate and reasonable.

Our sister has now been re-homed with the help of social services. She is living independently and still has this Non-Molestation Order and Occupancy order against her.

Our father has considered our sister and he is satisfied that she has been provided for. He also believes our sister would waste any additional money that she would receive if he now left any to her.

In conclusion he wants to change the terms of the trust so that the trust is ended.

He wants the house to revert to his ownership and he wants to make the sole beneficiaries of his house to be my brother and myself.

However, the solicitor who was acting for our father in this matter found that the trust had been put down as an ‘irrevocable trust’.

This was a complete surprise to my father who did not ask for this clause or had its implications explained to him at the time the original trust was taken out some 10 years ago. The original solicitors are no longer in business and their practise has now been purchased by another firm of solicitors.

An Irrevocable Trust is exactly what it says. It cannot be changed.

Our father is devastated. His new solicitor believes it is very unusual for a trust to be set up as an Irrevocable Trust. She suggested my father could ask a barrister who specialises in trusts to look at the circumstances of his situation to see if there were any grounds that would allow the trust to be changed or terminated.

The barrister’s verdict was that it couldn’t.

My question is this…….does anyone have a similar experience or can anyone offer advice as to how my father could CHANGE OR CHALLENGE the Irrevocable Trust?

Tony


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Comments

reader

17:38 PM, 22nd February 2020
About 7 months ago

Dear Tony,
Is the value of the estate worth the potential enormous legal expenses?
There are answers to your problems and you should consider using outside agencies who would be willing to intervene to protect your father. The police have a specialist unit that deals with the protection of vunerable adults and so do social services who often work together.
It is possible to alter trustees and terms of a trust but you will either need the consent of all the parties involved and from what you describe your father might not pass the statutory test that determines capacity. Or you will need a court order.
You can also apply to the Court of Protection to be put in charge of a persons affairs but it would help you a lot if the outside agencies supported you in that move.
You must not just think in terms of trust but consider the other family law options that are also open to be used. As such a specialist firm of solicitors could advise you.

Lindsay Keith

20:39 PM, 22nd February 2020
About 7 months ago

Following on from the excellent comments above, may I respectfully suggest that
1. You and your co- trustee brother organise that your father executes and registers Lasting Powers of Attorney for both Financial Affairs and Health & Welfare appointing you both as Attorneys to act jointly and severally?
2. Get your own legal advice regarding the Trust and 'irrevocable'? Ask Property118 for a recommendation as to expert Firm and any Barrister? We readers of your situation don't know the quality of the advice your father has received?

Joyjoy

3:08 AM, 23rd February 2020
About 7 months ago

...and there’s my Declaration of Trust, making sure my Father was housed in his last 20 yrs, being the sole contributor,, DofT was forgotten about by the same original Solicitor, who allowed property to be sold, handed over proceeds and then remembered!

But nobody had any duty of care to me, they say...

Dennis Leverett

10:21 AM, 23rd February 2020
About 7 months ago

Reply to the comment left by Lindsay Keith at 22/02/2020 - 20:39
Essential I would say but all immediate family members have to agree and sign before it can happen (Power of Attorney) unless you can prove to the satisfaction of a court that the sister is not compos mentis, she may even agree to it. Based on the facts we have there will be no winners in this situation and as reader above said concentrate on the father and help his last few years be a little more pleasant.

Dennis Leverett

10:27 AM, 23rd February 2020
About 7 months ago

Reply to the comment left by Joyjoy at 23/02/2020 - 03:08
It should have not been possible to sell the house with a Declaration of Trust in place and it sounds very suspicious based on what you have said especially if the same solicitor was involved in both. You may have been a victim of a serious fraud. Who did he hand the proceeds over to?

Joyjoy

11:19 AM, 23rd February 2020
About 7 months ago

Reply to the comment left by Dennis Leverett at 23/02/2020 - 10:27
Father lived on his own totally, after Mother’s sudden death, then took ill after 15 yrs. I looked after him for almost 3 yrs because nobody in the world was interested. Not any of his other 8 grown up children who all lived within seconds, for whatever reason they had...

One person, a brother hounded me away, the businessman of the family, he bragged, verbally abusing us both...

I never went back and explained to Adult Services.

Now it is proven:

With 8 weeks he brother, got this same Solicitor to make a will, which is fine he had a few quid of his benefits saved, but Solicitor allowed him to gift the property away, making him and his wife the only Executors and a beneficiary.

Awarded POA by same Solicitor.

Sold property to his own son, for half the market value, conveyancing by same Solicitor.

I never knew any of this.
————————————————

Father dies, I turn up at same Solicitors’ Office, he tells me Father changed his Trust and goodbye.

Solicitor nearly collapses when I show him the original paperwork, plus postmark, sent to my Father, he admits in writing he forgot and said he let brother know, ~ within 24 hrs of handing over proceeds, which he will testify in court, his defence lawyer state.

Solicitor retires.

Dennis Leverett

11:35 AM, 23rd February 2020
About 7 months ago

Reply to the comment left by Joyjoy at 23/02/2020 - 11:19
Did you get the police involved as this can only be classed as fraud surely, family's and money rarely works out with a happy ending. Had similar thing with my father, not financially, when mum died suddenly so I know where you are coming from.

Joyjoy

11:56 AM, 23rd February 2020
About 7 months ago

Reply to the comment left by Dennis Leverett at 23/02/2020 - 11:35I’ve just received the final response from the Solicitors’ defence lawyer, who state I can’t go to the Police or Law Society, because he was not representing me, but I was not told anything to the contrary...
All I know is if I never provided the funds there would have been no owned property, that’s why we secured it with a DofT as this Solicitor, advised and charged me house cost plus his fee, which I have proof of.
This Solicitor, who was highly recommended by my brother, because,
“He’s great, he’s done all sorts for me”... It is now proven that brother is riddled with debt, that’s why he was torturing me to get me away, so he could do what this Solicitor has allowed him to do.
What happened in your case if it wasn’t money?

Dennis Leverett

13:12 PM, 23rd February 2020
About 7 months ago

Reply to the comment left by Joyjoy at 23/02/2020 - 11:56
Get all your paperwork together and go to the Police, tough I know but based on what you say you have been done big time. This solicitor if true needs striking off.

Paul Shears

15:22 PM, 23rd February 2020
About 7 months ago

I had a similar difficult family situation with my own sibling nine years ago.
1. I attempted to register a power of attorney with the court of protection.
2. The sibling objected and accused me of 14 counts of fraud and misrepresentation. They also suggested to the court of protection that I might kidnap my own mother.
2. The accusations were very well worded and it became apparent due to the time scales involved and the structure of the accusations that they were all prepared in advance.
3. The court of protection wrote to me via my solicitor requesting my responses which I sent off within about eight hours of receiving them.
4. The court of protection wrote to the sibling, gave them two weeks to respond to my replies and interestingly included the statement that although I was under no obligation to do so, if I chose to employ legal representation and the conduct of the sibling was found to be malevolent (Which it most certainly was), then costs would be awarded to me against the sibling.
5. The sibling failed to respond to the court and the power of attorney was registered.
6. Had I not taken responsibility in this and subsequent matters, my mother would have been bankrupt about seven years ago.
7. The sibling has had no contact with the family, including my mother for nine years.
8. I have more than doubled the size of the estate in that time.
9. My mother's quality of life has, apart from failing health, been the best that she has ever known.
10. Due to my avoiding my mother's otherwise inevitable impoverishment, the malevolent sibling will eventually inherit 33% of the estate.
So the court of protection saved the day, even if complete justice will not be done.

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