Claimant living in property they are now inheriting

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    Where to start!?
    Elderly lady in a Nursing Home dies in October 2010, leaving a house as part of her Estate. The house is left to her two daughters. One of the daughters (who prior to the move was living as a non-dependant with her two young children somewhere else) moves into the property in March 2011.

    The tenancy agreement was with the family solicitors, who were charging rent. She could not live there without paying rent, and had she not moved in then they would have rented to somebody else.

    As a Grant of Probate had not yet been received, we awarded Housing Benefit to our claimant.

    In July we received a copy of the Grant of Probate which had been issued at the end of June. The named executors were the other sister and somebody else.

    We ended Housing Benefit on the Sunday after the date of issue of the Grant of Probate.

    We have now received a letter from the Solicitors asking why payments have stopped, how much they will be in the future and at what frequency.

    (We also have an interesting appeal from a legal rep for the claimant stating that she appreciates that she now owns 50% of the property she lives in, but that she thinks she is entitled to Housing Benefit on the 50% of the property that she still doesn’t own!!)

    My question is: Have we ended liability for Housing Benefit from the correct date? Or should it be the date that ownership of the property is actually transferred to our claimant (if this is a different date?)

    All advice on Probates etc very gratefully received! Thanks 🙂


    Until legal ownership is transferred by the executors, I would say you are looking at Reg 9(1)(e): the claimant is liable to make payments to a trustee of a trust of which she is a beneficiary. This puts the onus on her to show that it is not a contrivance. I think you are right that Reg 9(1)(e) would apply from the point at which legal ownership vested in the executors – the grant of probate in other words. Although someone with a better knowledge of wills might correct me on that.

    The 50% rent argument has been tried many times before. It fails because, once she acquires legal ownership, your claimant has the right to occupy her property. So does the other daughter, but your claimant will pay her to stay away. The sister cannot evict your claimant, however, so these are not payments that she has to make as a condition of occupying the dwelling and they are not covered by any of the heads of Reg 12(1).


    Thanks for that Peter! An interesting one for first thing on a Monday morning!

    Kevin D

    To add to Peter’s post, it may also be arguable that the claimant cannot legally be evicted and therefore, or in any case, the liability is unenforceable in all practicality. Even if the liability is enforceable, it is surely tenuous at best to suggest, in these specific circumstances, any tenancy or other agreement is at arm’s length; meaning it isn’t on a commercial basis.

    Case law that may assist on the issue of “no rent enforceable if right to occupy” includes:

    C1/06-07(HB) [Nothern Ireland case]
    Wilkinson v CAO [2000] EWCA Civ 88

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