Overturn of a deed-of-gift of family home made 36 years ago

[Mikezoe56]

How easy would it be to overturn a deed of gift (dog) of the family home given unbeknown to a wife 36 years ago to a son who 7 years after the donor’s death now wants possession of the property ie to kick his mother out? Her signature is not on the deed.
The property was in the sole ownership of her husband but the couple had no tenancy agreement ie lived under licence rent-free.
The wife has a powerful claim to have accrued beneficial interest by the date of the dog having lived there for 25 years and brought up 5 children. What possible defence has the son to his dog being overturned? How common in English Law is a dog overturn? What would bringing the case cost?

[atticus]

I think that the hound referred to may be the Deed of Gift!

[Mikezoeclem]

I think that the hound referred to may be the Deed of Gift!

Please elaborate!

[atticus]

The answer is that this case appears to be a very difficult one. While gifts and transactions for less than full value can be overturned, in very simple terms this happens when the court finds that the intention is to put the asset out of the reach of a particular claimant or creditors generally. The longer ago that the transaction was made, the harder this motivation is to prove.

As a starting point, what evidence is there of the reasons for this transfer of ownership at the time it was done all those years ago?

This wife needs specialist legal advice. And a good relationship with her son.

[atticus]

Is Mikezoeclem related to Mikezoe56? Please post under one username in each thread.

[atticus]

Please elaborate!

The OP mentions a dog on 3 occasions.

[Mikezoeclem]

The answer is that this case appears to be a very difficult one. While gifts and transactions for less than full value can be overturned, in very simple terms this happens when the court finds that the intention is to put the asset out of the reach of a particular claimant or creditors generally. The longer ago that the transaction was made, the harder this motivation is to prove.

As a starting point, what evidence is there of the reasons for this transfer of ownership at the time it was done all those years ago?

This wife needs specialist legal advice. And a good relationship with her son.

The motivation for the dog is unclear though he had given each of their 4 younger children a bungalow in the 1980s thus probably wanted to complete the wish to treat each equally but that the family home would eventually become owned by the eldest son. Of course there is now a complete estrangement of relations between the mother and eldest son (the mother is 87 and has memory issues). The case would turn on the validity of the claim of the wife to have had a 50:50 notional equity with her husband which was entirely ignored by the son’s solicitor. We have all the evidence to support her claim.
i appreciate that in the event that the wife needs to go into a care home and the local council are asked to fund the charges (her bank balance is under the threshold) their legal dept could challenge the dog and take the son to court over its validity despite the passage of time.

if we take the dog to court what defence could the son put up?

[atticus]

My dog is motivated by food!

What you say about the father's motivation does not make the case any easier.

[PallasAthena]

i appreciate that in the event that the wife needs to go into a care home and the local council are asked to fund the charges (her bank balance is under the threshold) their legal dept could challenge the dog and take the son to court over its validity despite the passage of time.

I doubt it. LA's can challenge asset transfers if they consider there was deliberate deprivation to avoid paying care costs but they must show they were significantly motivated by avoiding care costs, that when the asset was disposed of, the transferor had a reasonable expectation of the need for care and support, and a reasonable expectation of the need to contribute towards the cost of meeting those needs. I don't know how the LA would show that was the case 36 years ago, especially as the husband is long dead and the wife has memory problems.

And more to the point there was no asset transfer by the wife as, if I have understood you correctly, she never owned the house anyway. It was transferred by her now deceased husband (the sole legal owner) directly to the son. So how would the LA even know the transfer ever happened? The wife's name you never appear in any official records as ever having owned it so she couldn't deprive herself of it.

Before going anywhere with challenging the DoG consider the possibility that even if you succeeded in overturning the DoG and transferring ownership to the wife the only result might be that the local authority ended up taking it to fund care fees.

[Mikezoeclem]

Of course the LA interest only becomes relevant if the wife needs to go into a care or nursing home. Of more interest is the opinion that as of the date of the dog, the husband but certainly his solicitor should have understood the grave risk of giving away the family home and that the wife surely had accrued beneficial interest. No record has been found that the wife was advised on the matter and very conveniently the solicitor claims they have no records going back that far! I fail to understand what defence the son could put up for his dog. Incidentally I believe the only way the husband could have ensured his son would benefit eventually would have been to put the property into a joint tenancy in common with his wife and then dog his 50% equity but which would not be achievable until the wife’s eventual death. Then the 50% held by the wife could be used to fund care home fees if needed.

[atticus]

You may fail to understand, but in post #7 you gave a good explanation of the father's possible reasons for making the gift. I expect that this son may elaborate on that, and say that he accepted the gift in good faith.

What is your position in this?

[Mikezoeclem]

You may fail to understand, but in post #7 you gave a good explanation of the father's possible reasons for making the gift. I expect that this son may elaborate on that, and say that he accepted the gift in good faith.

What is your position in this?

I’m partner to one of the 5 children with no financial interest - just trying to help her mother remain in her home until she passes.
The motivation of the husband is of secondary concern though presumably would be considered by a judge. He recklessly made a dog with the help of a solicitor who seems not to have advised him correctly. The eldest son is not at fault for accepting the dog though his recent efforts to threaten eviction are unconscionable. What defence can be made of the dog which failed to take into account the wife’s interest? Had they divorced 36 years ago her solicitor would certainly have demanded 50% of the proceeds of sale of the house having lived in it for 25 years and brought up 5 kids in it.

[atticus]

The motivation of the person who made the gift, at the time of making the gift, will not be a secondary concern to a judge asked to set aside the gift.

Nor is what might have happened in a divorce that never took place a pertinent consideration.

The lady may have grounds to resist the son's demands, but I do not think that you are approaching this from the best angle. I repeat my earlier suggestion of specialist legal advice if the family cannot get together to find a resolution.

[Mikezoeclem]

[QUOTE=atticus;n1655885]The motivation of the person who made the gift, at the time of making the gift, will not be a secondary concern to a judge asked to set aside the gift.

Nor is what might have happened in a divorce that never took place a pertinent consideration.

The lady may have grounds to resist the son's demands, but I do not think that you are approaching this from the best angle. I repeat my earlier suggestion of specialist legal advice if the family cannot get together to find a resolution. [/QUOTE

Thanks for your thoughts. Actually today we have been quoted £3k for a top barrister to provide an assessment of the strength of the case to overturn the dog and the family are debating whether to “invest” in the project. No doubt if the verdict is “unlikely to win” we would walk away but if it’s “strong case” we could choose to go to court with much larger sums at risk. It’s all very unsettling. The threat of eviction remains and we might need to defend that using the beneficial interest arguments and evidence already assembled.

[Mikezoeclem]

I’d like to invite comments around UK property law changes (if any) over the last 40 years in relation to the rights of spouses to claim beneficial interest in the family home. Have there been any changes?