Help With A Will

[burneyboy]

Hi
I dont really know where to start with this one and im sure you will need more information to help me.
My Dad died around 16 years ago now,since then alot has happened and i now live with my mum to look after her as she has cancer,loosing her eye sight and is in quite a vulnerable way.
Its only recently that we looked through paper work and noticed that my dad made a will to leave his half of the house to the 4 children although there is only 3 of us now because my brother died 4 years ago too.

to try and cut a ver long story short my dad had picks disease (frontal lobe dementure) and he turned quite mad towards the end of his life but i moved out early (when i was 15) to get away but what i didnt realise at the time is he was being nasty to my mum and was totally paranoid about her seeing other men and things which was clearly all in his head,he used to be a big guy ,captain in the army,set records for cycling etc but then he withered away very quickly and the next time i see him he was just a dribbling wreck ,he couldnt speak and the dementure had taken over completely and he died shortly after.
so at that time when he was paranoid he made a will to share his half of the house to the 4 kids if the house was ever sold,my mum still lives in this house but it is in need of repair and best off knocked down and rebuilt.

so the trouble is if my mum decides to sell the house does she really have to give half to the 4 kids (i say kids we are all in our 40s and 50s).

i thought and can someone correct me if im wrong but if you are married and a partner dies then everything goes to the other half right?

there is a will that he made out and made her sign at the time which i will have to dig out to give you more information but my mum was very much bullied and scared of him at the time.

we want to sell the house and use all of the money to buy somewhere else more suitable for my mums condition.

i hope you can make some sense of what im asking and ill try and get more information.

we did see the solicitor and he said as soon as you sell you must give half to the siblings.

thank you in advance for any help.

[Peter Pedant]

// we did see the solicitor and he said as soon as you sell you must give half to the siblings. //

good, he's right

there is no reason why the siblings should not agree that their shares could still be used to buy another house along with your mum's half share for the term of her life and then to get their percentage shares on her death. Speaking about my own family it was not possible to get agreement

Your mum can do what she likes with her share and leave it by will to whomever she like ( usually I agree in equal parts to the children )

if you question is:
is the solicitor correct ?
Yes he is correct

[burneyboy]

i just would have thought that if the other half dies then all of the house goes to the living partner?

[woofgang]

Only if there is no will. Your father left a will and its terms must be obeyed.

[Dogsbody2]

Not if the Will says something entirely different.

It is sometimes possible to have a Will changed after a death by making a variation, but this has to be done within 2 years of the death of the Will-maker. So no chance of that now.

So, perhaps unsurprisingly, the solicitor does know his stuff. And all Answerbankers can do is conform that solicitor is right (but do it far cheaper).

[Buenchico]

There's an important question here that nobody seems to have mentioned yet and that's "Did Dad actually own half of the house anyway?".

You might think that the answer is "Of course he did. He and Mum owned it together" but it's not as straightforward as that. There are TWO ways in which a couple can own a house together:

Firstly, they can own it as 'tenants in common'. If that's the case then both partners each own half of the property and they're free to leave their share in it to whomever they like in their will.

However they can also own it as 'joint tenants' (which, with married couples, is probably far more likely). If that's the case then neither person owns any part of the house but, instead, it's their legal partnership which owns the whole of the property. Under such circumstances neither partner can leave their share of the property to anyone in their will (since they don't own such a 'share' anyway). When one partner dies the property is automatically owned outright by the surviving partner and anything written in a will (attempting to bequeath a share of the property to someone else) is totally invalid.

https://www.gov.uk/joint-property-ownership/overview

So the first step should be to check the land registry record to see whether you parents were 'tenants in common' or 'joint tenants'. It will cost you just £3 to get a copy of the title register: https://www.gov.uk/search-property-information-land-registry
If it shows that your parents were joint tenants then your mother already owns the house outright and she's free to do whatever she wants with it. (However she should first complete form DJP, and send it to the Land Registry to get the title register amended: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/490206/DJP.pdf )
If it shows that your parents were tenants in common then (unless you can successfully challenge it via the courts, which could be a very expensive process) the terms of your father's will must apply.

[bednobs]

how many people know you found the will? If just you and your mum, i would conveniently lose it.

[Peter Pedant]

I was gonna report this as inciting someone to behave unlawfully
( destroy a will ) ..... so no one would know the secret if the post were spiked....

but if you think about it - that wont work
and that is because there will be a record of whether the land was originally held jointly or in common

and so the rather stupid advice of - if you have a legal document you dont like then burn it - can stand.

Bednobs - you should know better ....

[Barmaid]

Right burneyboy. You've had some good advice here. It's probably as much as anyone can do with this amount of information. The devil is always in the detail in these cases.

Your first step is to do exactly as Buenchico suggested and find out from the Land Registry how the property was held. You as a layperson will probably not be able to tell whether the property was held as joint tenants or tenants in common just by looking at the title register. If you post the wording here from the section that is titled "Proprietorship Register" (omitting names and addresses) we may be able to tell you. HOwever, 16 years ago, how things were recorded on the Land Registry were done differently, so what you really need to do is request the TR1 from the Land Registry. You will have to telephone them to find out the form you need to fill in to do this and this will cost you a fiver, I think. This form will tell you definitively how the property was held. If it was joint tenants, no need to worry, the Will has no bearing since your mum inherited by survivorship.

If it IS as tenants in common, there is another potential avenue you can take. This is as has been advised, all the children can vary the Will to give your mum a full life interest in the property or its replacement. (You can still vary after 2 years, it just doesnt have the same effects for taxation as if done within the 2 years). If the kids wont agree, then your mother potentially has a claim for "reasonable financial provision" under the Inheritance (Provision for Family and Dependants) Act 1975. Normally you have to bring such a claim within 6 months of the Grant of Probate but given the Will has only just turned up, I imagine there was no Grant. You only need to do this if the other siblings will not agree.

I suggest you do what Buenchico has suggested and then either revisit your solicitor or go to a specialist barrister direct. I dont imagine it would take more than an hour's work to sort this out so you could potentially get some decent advice for less than £200.

As for the Will that your mother was persuaded to sign, if she still has capacity she may revoke this. She can simply destroy it with the intention to revoke and then her estate (when she dies) will pass to her children. If she wants something different to this then she should make a new Will.

[Peter Pedant]

thanks for the advice Barmaid