The law relating to settlements and trusts for land was altered radically by the Land and Conveyancing Law Reform Act 2009. This note will principally deal with registered land. Prior to the 2009 Act life tenants were registered as limited owners. Under s. 11 of the 2009 Act the only estates that now can be created are freehold and leasehold estates. Part 4 of the 2009 Act deals with Trusts for Land and section 18 creates the broad concept of trust for land, which covers pretty much every cases where property is held on trust and s. 19 sets out the rules as to who are the trustees of such trusts.

With respect to Land Registry practice and such trusts, the Land Registry have a practice direction called “Trusts of Land”. Section 1.5 of this includes a new approach of the Land Registry with respect to Trusts for Land

1.5 Application for registration where a trust in land exists lodged on or after the 1st December 2009 In any application for registration where a trust in land exists lodged on or after the 1st December 2009 the only registration that can be applied for is registration of the trustees as owners. The interest of a minor or a life interest are equitable interests only. Equitable interests are not registerable interests.

So where trusts are created or where there is a life interest, the only person that now becomes the registered owner is the trustee of the settlement. For settlements created by will, the personal representative is the person who is the trustee of the settlement.

So under the following strict settlement “I give my farm to my wife for life with remainder to my son” under the law prior to the introduction of the 2009 Act the wife of the deceased would be registered in the Land Registry. The entry would say “Mary Smith, of New Road, Athboy, Co Meath, is limited owner”. What now is registered is simply the per reps of the estate.

However, as the 2009 Act is relatively recent, there will be lots of cases where there is still a reference to a limited owner on title. Again these invariably arise where a life interest was granted. When the life tenant dies, the remainderman (ie the person entitled to the property after the death of the life tenant) can be the registered owner.

To proceed with this, one must use Form 45 of the Land Registry Forms and amend it according to the circumstances. The applicant will be the remainder man, who is the person who swears the form 45. In the form the applicant will be required to set out the details of the limited owner and the provisions of the settlement under which the limited owner was registered (which will be the will of the deceased). Paragraph 2 requests whether or not there are burdens to be registered on the folio as part of the new ownership. Generally there will not.

Paragraph 3 then requests one to complete the trustees of the settlement. In a will case, this will be the per rep of the estate. Paragraph 4 looks at whether or not the property has been transferred or charged.

One completes the form and submits this to the Land Registry through a Form 17, and include, with the application, the grant of probate in question or a sealed and certified version of this or a certified copy, the death certificate of the life tenant and fees of €130.

I attach a completed version of form 45 which we submitted recently which was successful in such application.

I hope this helps and if you have any probate queries please do not hesitate in reaching out through our service.

Here is a precedent of a Form 45 duly completed. The blank version of this can be downloaded from the land registry website