In the Estate of JS (Deceased) - The Official Solicitor as Controller Ad Interim for NS (A Patient) v MS
| Jurisdiction | Northern Ireland |
| Judge | McBride J |
| Judgment Date | 04 October 2018 |
| Neutral Citation | [2018] NICh 20 |
| Court | Chancery Division (Northern Ireland) |
| Date | 04 October 2018 |
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Neutral Citation No: [2018] NICh 20
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McB10720
Delivered: 04/10/2018
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
CHANCERY DIVISION
________
IN THE ESTATE OF JS (DECEASED)
BETWEEN:
THE OFFICIAL SOLICITOR AS CONTROLLER AD INTERIM FOR
NS (A PATIENT)
Plaintiff;
-and-
MS
Defendant.
________
McBRIDE J
Introduction
[1] This case involves a consideration of whether, and if so, in what
circumstances a right of residence, granted in a will can be terminated when the will
has made no express provision for termination. Research has shown that one in ten
wills in rural areas in Northern Ireland contain a right of residence and therefore the
determination of this question has important implications for testators, donees of
such rights and legal practitioners involved in drafting wills.
Background
[2] NS, a patient is the widow of JS deceased (“the deceased”). MS, the
defendant is the son of NS and the deceased. The deceased’s will, dated 9 May 2005
provided, inter alia, as follows:
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“I leave, devise and bequeath to my lawful son, MS,
free of all inheritance tax and other tax or duty liable
on my death, my dwelling house and premises
known as [“the property”] in the City of Belfast or
any other dwelling house and premises in lieu thereof
which shall be my principal residence at my death
subject to a right of residence for my said wife during
her life or until his death or remarriage, my said wife
paying all ground rent and other outgoings payable
in respect of the said dwelling house and premises in
keeping the same in reasonable repair and insured in
the full value thereof.”
[3] The property is a dwelling house situate in Belfast.
[4] The deceased died on 27 September 2009 and a grant of probate issued to NS
on 16 February 2010.
[5] On 1 March 2010 NS made an Assent of the property to her son, MS subject to
her right of residence.
[6] In early 2016 NS attended James Pringle, solicitor. By letter dated 10 October
2016 Mr Pringle set out NS’s instructions to him as of 30 March 2016 as follows:-
“1. That she was not living in the property.
2. That the property is habitable.
3. That she did not intend returning to the
property.
4. That the property was in reasonable repair.”
[7] Based on her instructions he prepared a Deed of Surrender of Life Interest
and Release (“Deed of Release”). In accordance with this Deed of Release NS agreed
to surrender her right of residence in consideration of MS releasing her from all
demands for payment of ground rent and other outgoings in respect of the property
including maintenance, repair and insurance. MS refused to sign the Deed of
Release and consequently the Deed of Release remained unsigned by either party.
[8] On 21 September 2016 the Official Solicitor was appointed controller ad
interim. In this capacity Ms Coll wrote to MS indicating, in terms, that she would
sign the Deed of Release on behalf of the patient if MS would agree to release NS
from payment of the outgoings in respect of the property.
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