I was reading this Q&A item in The Times newspaper recently. Do bear in mind that as this advice was given by a barrister in England and the circumstances refer to UK law, it may not be totally applicable here in Malaysia. Nevertheless, it raised an interesting point of view.
Q In her will, my mother left me and my brother two houses with an orchard. We were also executors of her will. After probate was granted, we had all the land registered in both names at the Land Registry. My brother lives in one house, and the other is rented out.
We now want to split up the properties and divide the proceeds, but my brother is worried that he may be forced to move out of what he calls “his” house. Do we need to sell everything or can I let my brother simply keep the house? Also, what do we do about the orchard? Although I love my brother dearly, I do not simply want to give it to him for nothing.
A Your mother’s will created a trust. The property in the trust is held by the trustees named by your mother and it is to be used for the benefit of the beneficiaries identified in the will. You and your brother are therefore both the trustees and (coincidentally) the beneficiaries as well.
Ordinarily, when the trust is wound up, the properties would be sold and the proceeds divided among the beneficiaries according to their entitlement in the will.
However, the more appropriate procedure in your case is probably a partition. The trustees can sign a Deed of Partition that divides up the land and allocates the various parts to you and your brother. Under Section 7 of the Trusts for Land and Appointment of Trustees Act 1996, the trustees first have to obtain the consent of the beneficiaries – but it does not sound as if it that should be a problem in your case. If you cannot agree about the partition, either of you may apply to the court to order a partition under the Act.
As to the orchard, the solution is to have the various parts of the properties valued by a surveyor before they are allocated. If either of you is allotted a less valuable parcel of land in the partition, they can have their share topped up by a cash payment by the other party. This is called payment of “equality money”. Again, the amount of any equality money can be set out in an agreed Deed of Partition or the court can be asked to assess whether it should be paid and what the sum should be.
The writer is a barrister at Tanfield Chambers.