Can our father change an Irrevocable Trust?

by Readers Question

16:55 PM, 18th February 2020
About 8 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

Joyjoy

16:00 PM, 23rd February 2020
About 8 months ago

Reply to the comment left by Paul Shears at 23/02/2020 - 15:22
Brilliant that you stood your ground and sorted it for your Mother.

In my case, my Father did not own his house because he never paid for it, I did, in full, to enable him to keep the home he had lived in for 30yrs then. I paid all maintenance:
British Gas,
Buildings insurance
Water
for the whole of the duration. But the defence lawyer said, he has no duty of care towards me. Why would I secure someone a home, pay whole cost plus Solicitors’ fee, and now he states he was not representing me, even though he has admitted in writing, he forgot about the Declaration of Trust.

Kate Mellor

18:12 PM, 23rd February 2020
About 8 months ago

Reply to the comment left by Joyjoy at 23/02/2020 - 16:00
Would I be right in surmising that this was a council owned property purchased under right to buy? Otherwise it wouldn’t make sense purchasing in your father’s name & not your own. I know 20/20 hindsight is a marvellous thing, but if you had your own solicitor acting for you, they would probably have suggested you register a charge against the property so it couldn’t be sold without your consent. That way it would have flagged up if the solicitor had forgotten about the DoT. I take it you weren’t able to do anything about it in the end, or is it still ongoing? I really feel for you. It’s so sad when we can’t even trust our own family not to screw us over.

Joyjoy

19:01 PM, 23rd February 2020
About 8 months ago

Exactly yes all of these things maybe
Should have been carried out, even though I’ve been advised it is not necessary.

We both went to meet this Solicitor, he explained a DofT , we agreed and he suggested how he would through in a will, free of charge. Why, he hasn’t got anything, that’s why I am paying, and that’s why we are making a DofT, because the Solicitor has the expertise in Law, I thought!

I have the original postmarked letter, confirming this first meeting.

We were told to come in and sign up.

We did, the DofT and Will lined up on his highly polished table.

The 2 secretaries were called in to sign and witness, which they did.

I was told to bring in payment for property PLUS his fee, which I did.

End of story, no one told me he was not representing me.

Now I am being told the DofT is not signed and witnessed (by the secretaries), only the will.😕

The Will, the only document that can be changed, which was changed 14 years later, by the same Solicitor, because he forgot , and nearly collapsed when I turned up when my Father died, with Fathers original paperwork.

He said,
“So you’ve got it in writing then”.

Thank you, so many takeons in the world.

Kate Mellor

19:14 PM, 23rd February 2020
About 8 months ago

Reply to the comment left by Joyjoy at 23/02/2020 - 19:01
Would you possibly have a claim against your father’s solicitor’s professional indemnity policy under Third Party Rights? He allowed your father to act in a way he wasn’t legally able to do with full knowledge of the DoT thereby causing you, the third party a tangible financial loss.

Dennis Leverett

19:15 PM, 23rd February 2020
About 8 months ago

Reply to the comment left by Joyjoy at 23/02/2020 - 19:01
Every D of T that I've used has been registered against the property at land registry as a matter of course by the solicitor. I had a family member bleed my father dry and was not found out till I sorted out Probate, I asked for money back and got the answer "no point he's dead now" When I sold the house that I paid for extended and maintained for many years for my father before he passed on they had the cheek to threaten to take me to court for "their share" (two siblings) I told them to get on with it and not spoken to them since.

Kate Mellor

19:54 PM, 23rd February 2020
About 8 months ago

Reply to the comment left by Joyjoy at 23/02/2020 - 19:01Sorry Joyjoy, I just realised that I’d missed some of your earlier posts with more details. In your place I would certainly contact the law society about this if you can, regardless what the solicitor says. He had a clear conflict of interests and is trying to wriggle out of his mistakes. He should have advised you that he wasn’t acting for you and that you should obtain independent legal advice.
You have a claim on the estate to the value of the property, you can’t undo what’s been done, but it would seem reasonable that they should have to put you back into the same financial position you would have been in. therefore I would have thought you’d have a claim on the beneficiaries, or the executor of the estate. If you can’t get anywhere with a claim on the solicitor you may be able to get a judgement against the beneficiaries in court for the value of the property they sold, (it helps that you have proof from the solicitor that they acted with full knowledge of your claim). If the court finds in your favour and you get a judgement against the beneficiaries, you may be able to apply for a charge over any property that they own so that they cannot sell it without repaying the debt to you from the proceeds. I’m obviously not a solicitor, but it may be worth exploring if you haven’t already.

Joyjoy

20:07 PM, 23rd February 2020
About 8 months ago

Reply to the comment left by Kate Mellor at 23/02/2020 - 19:14
I’m exhausted just being told by the defence lawyer he wasn’t representing me.

My Father knew the house was not his, he knows he never paid for it and was proud as punch that I allowed him to buy it.

It’s just a bully boy son, who is riddled with debt, who has either set this up with the solicitor or a chance in a million the Solicitor forgot.

They are telling me to make a claim on the Estate when it is the Solicitor who is responsible.

Joyjoy

20:34 PM, 23rd February 2020
About 8 months ago

Oh I forgot to say:

Once Father put sons name on the will, son put him on a home, got POA by same Solicitor, sold his house ripped it apart, and he was in a home for 13 months waiting to go home and died.

My Solicitor said she has spoken to counsel who thinks it wouldn’t stand up in court because, why would he favouritise me by putting my name on Land Registry???, erm probably because I have the bank statement for the full cost plus fee to prove, after we made the signed DofT, which clearly states, he can live there rent free for life and no sale shall be even considered without my permission and if I agree, the proceeds are for me.

Thank you for your help.

Kate Mellor

20:45 PM, 23rd February 2020
About 8 months ago

Reply to the comment left by Joyjoy at 23/02/2020 - 20:34
I don’t envy you having to deal with all this, no wonder you’re exhausted. Your solicitor sounds like a peach, gee why should you be entitled to get back something you paid for in full 🙄.

Puzzler

9:13 AM, 24th February 2020
About 8 months ago

JoyJoy - do at least write to the Law Society whether or not this crook has retired

Tony, it seems unlikely you can break this trust unless your sisters agrees (can you buy her out of it?) so I would make the best of it until your sister passes when the house will revert to you and your issue. As others have said take care of your father and try to cheer him up about it, he did it with the best intentions thinking her needs required it. A salutary less to us all (both posters)

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