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Transfer Ownership Of Property With Risk Of Future Will Challenge

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  • Transfer Ownership Of Property With Risk Of Future Will Challenge

    I am the executor and beneficiary of my dads estate which includes a house.

    A have a brother who my father left out of the Will totally, he is making noises that he may challenge the will, but as of yet I am not aware of this happening.

    Probate is granted, Can I start to go through the process of transferring the title ownership of the house to me as at the moment I am not sure if it will be sold or kept, I am doing it all myself but of course would have to get legal help if a challenge does come about.

    If there is a future challenge, can you think of advantages or disadvantages of doing this or it would it not matter?
    Last edited by Yamaha121; 30th January 2019, 20:25:PM.
    Tags: None

  • #2
    I'm surprised nobody has commented. As sole beneficiary you don't lose much by transferring the property to yourself. I would not sell the house until the pretty short timescale for a challenge has passed. He's not alleging undue influence I take it?

    Comment


    • #3
      Thank you 2222, I am not sure what the grounds would be, but I think would ether be lack of capacity or lack of provision, would be no reason to think undue influence as I wasn't even aware the will had been made.
      Last edited by Yamaha121; 30th January 2019, 20:26:PM.

      Comment


      • #4
        Lack of capacity is hard to prove if the will was drawn up by a solicitor. The solicitor should be alive to the issue and only take instructions from someone who appears to be capable of giving them.

        Was your brother dependant on your father at all?

        Comment


        • #5
          No not dependent financially since a child but is on Benefits now and looks to have Googled cases like Ilott.
          And yes the Will was done at a Solicitor, I can see no obvious mental capacity issues other than being elderly with
          poor health in general.
          Last edited by Yamaha121; 30th January 2019, 20:27:PM.

          Comment


          • #6
            Hi Yamaha121,
            Technically any claim would have to be brought within 6mths of the Grant of Probate being issued so it isn't recommended that any distributions occur until that point. If the estate had been distributed ie the house transferred to you then you would potentially be liable with your beneficiary hat on rather than executor. You're one and the same person so not impossible to deal with, unlike where an estate is divided between a number of people who would all have to be involved.
            IIlot was a specific case that was decided on it's facts. The same would go for any other claim so just because a child is on benefits does not automatically give them a right to a part of an estate.
            As you mention if a claim was brought then sensible to get legal advice but with regard to the house as you are executor and sole beneficiary you could transfer the property but do be aware if a claim were made and it was successful then it may be necessary to 'divide' the property at that point. I wouldn't sell the house and spend it all at least until the 6mth period has passed.
            IF any claim is forthcoming I would strongly recommend mediation, in fact you would be expected to attempt it to try and negotiate a settlement rather than pursuing the Court route to the end.
            I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

            Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

            If in doubt you should always seek professional face to face legal advice.

            Comment


            • #7
              Many thanks Peridot, your advice is noted and taken on board.

              Comment


              • #8
                I have decided not to bother with the transfer of ownership while there is a risk, as it sounds like it would offer no extra "protection" and only in concur more expense if I was going to sell it anyway ether forced or through choice.

                My brother is telling me he has been to a solicitor who will be acting for him but he is not telling me on what grounds etc, Do I just have to wait at this point for something to arrive in the post, If in the background they are writing to my fathers solicitor for a larke v nugus request, would my fathers solicitor inform me or should I be contacting them now to inform them something could be incoming soon.

                Thanks for any advice.

                Comment


                • #9
                  Hi Yamaha121,
                  Unfortunately it is a sit and wait situation I'm afraid. They may well be contacting the solicitors instructed to prepare the Will. As they are not the executors they should get your permission to release the relevant parts and info from the Will file. Technically you could refuse to allow the file to be disclosed but generally that wouldn't be sensible. If your late father's solicitor contacts you then discuss what has been requested with them and which parts of the file should be disclosed, as well as getting a view on what they think the other solicitor is digging for.

                  Probably best to leave the property as is currently as you say. Do be aware council tax will become payable after 6 mths post death and as executor you do have responsibility for the properties security if empty including arranging insurance. Any outlay is a justifiable expense of the estate in relation to this side of things.
                  I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

                  Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

                  If in doubt you should always seek professional face to face legal advice.

                  Comment


                  • #10
                    On a purely practical basis, you should try to reach agreement with your brother on what is to be done with the property, irrespective of whether he has a valid claim. It either needs to be sold or rented out, as otherwise it's a drain on the estate that benefits neither of you and is likely to deteriorate. If your brother goes to court over his claim, it could take many months to resolve.

                    Comment

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