**WON!!!** Widower being taken to court to obtain order to sell property!

[son]

Re: Widower being taken to court to obtain order to sell property!

Update:

In short, 1) any claim is against the Trustee; 2) your mother (life tenant) owns nothing; 3) trustee holds legal title (nominal interest) for mother (Life Tenant), and sons (Remainder, ie at mother's death). There is a trust (from the Will) operating from 28 November 2013. The property held on trust (through the Will) has to therefore be your main defence. A trust is like an invisible unbreakable seal that protects property/ interests for up to 80 years, so 80 years from said date. Your second defence is the property is held in trust for your mother, you, and brothers (including the youngest one): ToLATA 1996. Who is the trustee for the property? Your partial defence is that the chargee has adequate security as the property is strong in equity. So, any claims the chargee has must be against the trustee, not life tenants (mother), no remainders (you and other sons): Trustee Act 1925 (I think), but it could be Trustee Act 2000.
I have read the term of the Will, the terms of the Land Registry, and the Timeline. The only thing which is secure is the debt plus interest (may be £3 a day interest from the charging order. The claimant's costs including solicitors fees may be protected by the Will's Trust, which is affective from 28 November 2013. It's very difficult to know who has which charges on the land register as you have omitted personal details. Did the claimant or solicitor get a charge for the legal fees? My other question is, was this Trust made during his lifetime or just on his death? He could have made the Trust to be effective during his lifetime. It seems the trust is only applicable from 28 November 2013.

Thanks again openlaw.

no the solicitor never obtained their own charging order. The two original interim and full charging orders are in the name of the claimant.

The trust was set up whilst writing new wills in November 2013 - we were under the impression that the trust simply kicks in when he dies.

[son]

Re: Widower being taken to court to obtain order to sell property!

Do you know why there was a change of solicitors in October 2014?

Di

No there appears to be no reason!

[Openlaw15]

Re: Widower being taken to court to obtain order to sell property!

Thanks again openlaw.

no the solicitor never obtained their own charging order. The two original interim and full charging orders are in the name of the claimant.

The trust was set up whilst writing new wills in November 2013 - we were under the impression that the trust simply kicks in when he dies.

Update: According to your father's Will (see below) an executor is also a trustee. Had you got legal advice initially when you knew there was a trust in your father's Will, either at some point between November 2013 (date of his Will) and 3 July 2014 (his death), you likely would have been spared all of these problems. What it should have meant, is that any executor or trustee would normally have been the defendant and not your mother, who is merely life tenant. The property essentially belongs to the trust, not your mother, not you. You as an executor are potentially liable as a defendant but your first defence is that you - as trustee/ executor - merely hold the property on trust for your mother as a life tenant and your other brothers as 'remainders.' You do not have title (ownership) to the property so a court order of sale must fail. It's a bit late in the day now actually to use this defence but to be fair it's the only strictly legal (mainly anyway) defence you have. Yes, you benefit the property held on trust via 1996 Act (as aforesaid), but as there is a trust per se it would have been protective in effect not just persuasive (ie by the 1996 Act).

So nevertheless the Will's Trust was effective 3 July 2014 when your father died. The Trustee is the defendant as he/ she holds the property where your mother/ family lives in the trust's property. You are the executor and trustee according to section 14.3, Part 2 - Interpretation and construction, of your father's Will. Were any solicitor/s appointed as trustee or any one else in your family besides the executor? There will probably be a deed instrument for the Trust (as a solicitor has drafted the Will, clearly).

NB: I knew an inter vivos (during lifetime) trust kicks in automatically when it is made, for the same reason I assumed where a trust creates a trustee (a real person, and not just a legal seal of protection) that it is effective from that date. It's not, it seems, and only applies from when the person (testator) dies.

[son]

Re: Widower being taken to court to obtain order to sell property!

Thanks OpenLaw.

I think I am with you! A lot to take in.

No solicitors were appointed as trustees. The only trustees are I believe myself and Brothers.

Thanks Again!

[son]

Re: Widower being taken to court to obtain order to sell property!

Afternoon Everyone,

Just to keep this thread updated - We contacted Joanna Connolly Solicitors and have managed to stop the immediate threat of the order for sale by looking at this from a completely different stance. We are due for a hearing later in the year - I will keep you all updated.

Please, if you are having any similar problems - get in touch with them!!!

Son

[son]

Re: Widower being taken to court to obtain order to sell property!

Good Morning Everyone,

A further and final update (I'm pleased to say) for you.

Working with Joanna Connolly Solicitors we managed to get the order for sale dismissed.

The case was approached in a very clear way and we were involved every step of the way, no questions were left unanswered. Jo clearly examined our case and had not just one line of attack, but several! I'm pleased to say the claim was dismissed with just one of these lines.

Please! If you have found yourself in a similar situation, please do be in touch with them. I am now a complete advocate and cannot recommend them highly enough. (Stay calm... and call Jo!)

CASE DISMISSED!

[Kati]

Re: **WON!!!** Widower being taken to court to obtain order to sell property!

Congratulations [MENTION=87388]son[/MENTION] and Well Done to [MENTION=7765]Joanna C[/MENTION] :nod:

I'm glad this is finally over for you xx

[wales01man]

Re: **WON!!!** Widower being taken to court to obtain order to sell property!

A good result well done to all

[Diana M]

Re: Widower being taken to court to obtain order to sell property!

Working with Joanna Connolly Solicitors we managed to get the order for sale dismissed.

You're right to say "we" managed to get the Order for Sale dismissed because these proceedings involved your whole family some of whom had to live for months (since June 2016) with the uncertainty of losing the roof over their head.

What a relief to finally achieve peace of mind

Di

[son]

Re: **WON!!!** Widower being taken to court to obtain order to sell property!

You stars! Bring on the next one :judgey: