will and deeds

[izzitme101]

A while ago my stepmother died, adn her children never got on with my dad.

They had a house together, in which the deeds state that the entire property goes to the surviving partner in the event of death.

 

My dads solicitor at the time clearly stated that the property moves to my dad after having read the deeds.

 

Unfortunately, it appears she left half of the property to her own children, and now we have a letter from their solicitors basically asking which estate agents are being used to sell the property so the kids can have their part of it.

 

Does anyone know where we stand on this please, and what to write back?

I do know its a tough task to challenge a will, is this the same with deeds to a property?

Edited July 6, 2012 by citizenB
formatted for easier reading

[citizenB]

Is there a will?

[izzitme101]

Yes, she left a will leaving half to her kids, but according to the deeds, the property goes to the surviving partner.

An initial look tells me that the deeds take precedent, however some case law has been quoted in the letter,

but i wont get to see what case it is until tommorow.

[Bang!]

In situations like this normally the will lets the deceased's share of the house be held in trust until the surviving partner dies.

[izzitme101]

Hmm from the little i have found, the deeds take precedent over the will if there is a survivor clause in it, which there is.

[citizenB]

If you let us know what case law is, when you receive the letter - we can take a further look for you.

 

You need also to see a copy of the Will

[izzitme101]

Ok i have the details here now.

I havent found anywhere on the deeds and survivorship, just that the mortgage states that it goes to the survivor.

back in 04 my dad moved out of the house he lived in with his wife. A couple of years later she became very ill,

and they were still on talking terms, and were seeing each other a lot, just not living together.

Last year she died, leaving a will handing her half of a property to her children.

 

It appears that they are claiming she severed the joint tenancy 4 years ago, and have a letter providing for this,

but without my dads signature, it only has hers on it.

 

The case they quote is williams v hensman which explains the 3 ways to make a severance.

I already know two of those are irrelevant, the only thing i can think of is that they think they were living as tenants in common,

under which a severance could be made.

 

The quoted case is williams v hensman, and i now need to find out if a severance can be made secretly witohut the other tenant knowing.

 

I have a copy of the will that was sent with the letter, as her children froze my dad out of anything.

I also have full access to the deeds, and the mortgage agreement.

[citizenB]

I have flagged your thread for site team. I am sure someone will look in over the weekend.

[izzitme101]

Thank you, i think im starting to understand some of it now , but would be nice to make sure im thinking right

[izzitme101]

Ok I have a grip on this now, and understand what has happened, it isn't looking good for the other side either

Would appreciate if someone could find me the williams v hensman case so that i can read fully, i have looked but

can't find it myself anywhere, only vague references to it.

 

I will update with further details as we go now, so that others can see if needed ta all in the future.

A letter will be winging its way back tommorow

[assisted blonde]

Hi as this case dates from 1861 it is possible that unless you have access to specialist law websites then you wont get the full text of the case, there are plenty of references and extracts of the salient facts of the case on the internet though, Unless you are a lawyer reading the full case would probably not be of much help.

if you do want the full text then you will be able to get it from the Justis legal website, but it will cost you to join.

[izzitme101]

Ah thanks blonde, i had found bits an pieces, but not really in a way that made to much sense.

I guess i dont need to read it that much, just as long as i get what the approach is

[assisted blonde]

Just to clarify the letter could serve to sever the joint tenancy the solicitor only has to say that it was sent to the last known address or place of business of your father, there is no requirement for him to have acknowledged the letter. A joint tennancy can also be deemed severed by a course of dealing, there are other more up to date cases where reference has been made to Williams for example Burgess v Rawnsley.

[izzitme101]

Thats ok, its not so relevant now, the law also says that land registry must aso be informed so that a class A restriction can be placed on the property

in question, i guess to prevent sale without consent.

Having gotten the deeds from land registry yesterday, there is no restriction from the claimants placed on there.

 

On the severing, there are two pages, one with her signature on it, and a second page which clearly should have been sent for my dad to sign.

Now if they have the copy that should have been sent to my dad, they clearly never posted it in the first place

 

Am going to look at Burgess v Rawnsley now as well tho, thank you

[izzitme101]

My next question is about the will

If the will states they are to be buried, and the executor decides to cremate instead, can this void the rest of the will?

[assisted blonde]

No dont think it can, a will is valid as to the distribution of assets but the request to be buried is a request similar to asking for certain music at the funeral

The land registry only needs to be informed to protect an unauthorised sale, it may not invalidate the will, I really think that if you are going to challenge this you need to employ a solicitor who specialises in wills and probate and pos land law as well.

The trouble with this is that although there is case law it is not always as cut and dried as it may seem, the leading case is over 100 years old and although it is referred to there are other cases that will show different result as no 2 cases are the same.

Edited July 11, 2012 by assisted blonde

[izzitme101]

Thanks assisted, im not really lookign at invalidating the will, im already aware of how difficult that would be just exploring the issues at the moment.

After speaking to land registry, while they dont give legal advice, their opinion is that it would be difficult to demonstrate a severance, because they were not informed,

and therefore couldn't make the needed changes to the deeds, being an overriding legal document.

Having looked at the details of the severance there are 3 steps to carry out, of the three steps, only one was done, the next two were not even attempted.

Legal advice has been taken, and almost always is with me, i just think its a difficult situation at the best of times, and putting what i discover here may help someone else in the future.

Knowing the claimants, i suspect they will go alll the way with this, so we may get some updated law in a few years haha.

I also like to find out as much as i can for myself to.

[assisted blonde]

Well hope it all works out OK, but just bear in mind that the land registry said it would be difficult not impossible, good luck.