Structure of the charge: what is meant by beneficially entitled?
The use of the words ‘beneficially entitled’ means broadly that the estate includes only property
- to which a person is entitled, or
- in which they have an interest for their own benefit.In England, Wales and Northern Ireland this includes property which a person owns either legally or beneficially (
IHTM04441). In Scotland, the term ‘ownership’ does not necessarily equate to beneficial entitlement, for example where the land that is being transferred is subject to missives of sale of there is an unrecorded disposition. This is because of the Scottish system of unitary ownership. Any case where the question is in point should be referred to TG for advice.
A person is not beneficially entitled to property held
- purely in a fiduciary capacity (for example as a trustee)
- in a representative capacity (for example as an executor or a trustee in bankruptcy), or
- by way of security (for example as a mortgagee prior to foreclosure).A person may be entitled to or interested in property both beneficially and in some other capacity, for example, an executor who is also beneficially entitled to part of the testator’s estate. The property then forms part of the person’s estate to the extent of his or her beneficial entitlement.