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

Joyjoy

9:26 AM, 24th February 2020
About 7 months ago

Reply to the comment left by Puzzler at 24/02/2020 - 09:13
Thank you very much Puzzler,

I’d love to know if this was a scam from the beginning between this Solicitor and my brother, him offering wills free of charge, when all Father would have is the house, which we were making the DofT for he said.

This company is still a very reputable, long established business in a tiny city, apparently.

All advice is very welcome, thank you very much everybody.

Tony the hairdresser

9:33 AM, 24th February 2020
About 7 months ago

Hi
I do not know what seems to have happened but after Lindsay Keith's comments on 22-02-20 at 20.39 every comment after this has not been about our family's situation.
I think someone else's thread has been confused with ours????? Could I respectfully asked the administrator to shed some light on this?
Thank you
Tony

Joyjoy

9:40 AM, 24th February 2020
About 7 months ago

Reply to the comment left by Harveydog at 24/02/2020 - 09:33
I am very sorry, if it was through me.

Kate Mellor

11:28 AM, 24th February 2020
About 7 months ago

Reply to the comment left by Harveydog at 24/02/2020 - 09:33
Hi Tony, All the people commenting on Joyjoy’s situation have already commented on your original post and have opted to follow the thread, therefore we’ve offered you what advice we can and have tried to help someone else who’s commented on your post & is obviously also struggling. Any new readers will be drawn in to the thread by your original post and not this tangent. So anyone with any suggestions for you will still respond even though we’ve gone slightly off-topic. Unfortunately your situation is a very difficult one, so there will be very few suggestions anyone can make, as much as we all do really sympathise with you.

Joyjoy

11:33 AM, 24th February 2020
About 7 months ago

Reply to the comment left by Kate Mellor at 24/02/2020 - 11:28
Thank you Kate, I am still going through yours and everybodies advice still right now, wondering which way to go, and I am very grateful to all of you.

Thank you again 😊

Darren Peters

18:38 PM, 24th February 2020
About 7 months ago

Tony, does the irrevocable trust name a property where the lifetime tenancy for your sister is to be provided? Is it the previous larger house and has this house been sold to pay for the smaller house of your father?
If it named the old, sold house it's not possible to do. If it doesn't name a property, then the lifetime tenancy could be anywhere the Trustees decide.

Or does it state that the tenancy should be at a particular location?
Is the Trust Discretionary? Ie does it allow the Trustees to do what they think is in the best interest of the Benificiary?

Not legal advice, just thinking it through

Joyjoy

20:06 PM, 24th February 2020
About 7 months ago

Reply to the comment left by Darren Peters at 24/02/2020 - 18:38
Or did your Fathers’ trust state that the property will be provided, free of rent, for life, for his daughter, and no consideration to sell the same property, shall even be considered, without HER permission?

That’s how my Declaration of Trust, reads.

Puzzler

9:32 AM, 28th February 2020
About 7 months ago

Tony, sorry if you feel your post has been hi-jacked but the other poster's situation is very similar and useful to you and other readers for comparison and their experience might have a bearing on yours.

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