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

[atticus]

You might want to read up on the Supreme Court decisions Stack v Dowden (2007) and Jones v Kernott (2011). I believe both were cases in which the parties were (or had been) cohabiting but only one held legal ownership of the property.

[Mikezoeclem]

You might want to read up on the Supreme Court decisions Stack v Dowden (2007) and Jones v Kernott (2011). I believe both were cases in which the parties were (or had been) cohabiting but only one held legal ownership of the property.

Not sure why cohabiting cases are relevant. This couple had been married for 31 years when her husband gave the marital home to the eldest son.
Surely his solicitor should have advised against the gift?

[atticus]

Have you actually read those cases or any commentary on them?

Do you know what the solicitor did or did not advise? I can add from experience that clients do not always follow advice.

[Mikezoeclem]

Have you actually read those cases or any commentary on them?

Do you know what the solicitor did or did not advise? I can add from experience that clients do not always follow advice.

We don’t know what or even whether the donor’s solicitor gave advice over the gift. Indeed, even though there’s a tax declaration of a former partner on the deed, the solicitor is denying they drew it up and may have destroyed (within their 6 year after death policy) the husband’s file. If the donor did receive advice from his solicitor against the gift, wouldn’t that solicitor have a duty to write to the wife with their advice (knowing it was the family home)? Wouldn’t they do it to protect the practice against future action alleging professional misconduct?
I will check out the cases you mention. Can you provide a link please?

[atticus]

links as requested:

https://www.google.co.uk/m?q=stack+v...nel=new&espv=1

https://www.google.co.uk/m?q=jones+v...nel=new&espv=1


Put simply, a solicitor's duties are to his client.

I think you also have an insuperable limitation of actions problem with regard to any possible claim against the solicitor..

Get that KC's advice.

[Mikezoeclem]

links as requested:

https://www.google.co.uk/m?q=stack+v...nel=new&espv=1

https://www.google.co.uk/m?q=jones+v...nel=new&espv=1


Put simply, a solicitor's duties are to his client.

I think you also have an insuperable limitation of actions problem with regard to any possible claim against the solicitor..

Get that KC's advice.

I’ve had a look at the two cases but - probably because I have no legal background - do not seem to touch on our issue in which intentions form no area of contention.
Can you point to me any cases which relate to overturning deeds of gift?
On your final point I agree that focusing on the solicitor and establishing what happened is not going to get us anywhere.
Can we simply take the deed of gift (and eldest son) to court seeking to show it was not drawn up lawfully `(by whoever), demonstrating the wife had accrued ample beneficial interest by the date given and that her imputed rights must have been ignored?
What possible defence could he put up?

[atticus]

Before you start trying to work out what defence the son might have, you need to work out whether there is a claim that can be got off the ground.

Get that KC's advice.

[Mikezoeclem]

Before you start trying to work out what defence the son might have, you need to work out whether there is a claim that can be got off the ground.

Get that KC's advice.

We will do! Did you ever have a deed of gift overturn case in your career? Without citing names what happened?
thank you

[atticus]

Only in the context of insolvency law, attempts to put assets beyond the reach of creditors.

[Mikezoeclem]

Only in the context of insolvency law, attempts to put assets beyond the reach of creditors.

I see.
In the context of “getting the claim off the ground” I genuinely am interested in what reason could be found by Eric or his solicitor for not doing so given the key facts are not disputed ie that his parents had been married and been living in the property for 26 years at the date of the deed of gift. Why wouldn’t a wife not have accrued beneficial interest in these circumstances. Is it that beneficial interest is only notional until a judge confirms the situation?

[atticus]

It's you that is trying to get a claim off the ground.

Get that KC's advice.

[Mikezoeclem]

It's you that is trying to get a claim off the ground.

Get that KC's advice.

Following a barrister’s opinion (cost us £1620) we will not be seeking to overturn the dog. Beneficial interest is not acquired by a spouse in a property law case by length of marriage, children etc but only by contribution to the property acquisition costs, improvements or mortgage or having given up a career. No written promise of equity in the property by the sole owner husband has been found.

[atticus]

None of that surprises me. However, as I have previously said, I think there may be other grounds to challenge the son's claim.

[Mikezoeclem]

None of that surprises me. However, as I have previously said, I think there may be other grounds to challenge the son's claim.

We explored mental capacity of the father. What else were you thinking of?

[atticus]

Forget that. Look at the basis on which she has continued to live in the property. What understandings were there? Can the attempt to evict be resisted?