IHTM16139 - Rights of residence: joint ownership

These are a few examples of rights of residence where joint ownership is involved:

• The testator is a joint owner and by will provides for the other joint owner to enjoy occupation of the whole undisturbed.

This was the situation in the Lloyds Private Banking case (see IHTM16134).  Difficulties may arise where the terms of the will do not appear to confer such positive rights on the occupant. If in fact sole occupation has been enjoyed you should investigate thoroughly, obtain the facts and if exclusive occupation has been enjoyed find out why.  In contested cases, obtain copies of agreements, documents etc. and refer to Litigation Team. 

• The testator is a joint owner and by Will leaves his or her share to a third party. 

The survivor apparently does not have an interest in possession but has he/she in fact enjoyed sole occupation?  If so, you should proceed as in the previous example. 

• The testator is a joint owner and leaves his or her half-share to trustees on non-interest in possession trusts, the other joint owner remaining in occupation as before. 

This is a common feature of many tax planning schemes which have been developed recently and on which advice is being sought from the HMRC Solicitor. You should obtain the facts as above and refer any such cases to Technical who will liaise with the Litigation team as necessary.