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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 sole 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 was granted last month, 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?
    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?


    • #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, and my Brother had not seen my father a few months before the will was made but I guess you cant tell what other people are thinking, it turns out my Brother had last seen him a few months before he updated the will and then not since for a few years after before his unexpected death.
      Last edited by Yamaha121; 5th December 2018, 00:30:AM.


      • #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?


        • #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, but after the Will he went on to sell a 2nd home, Move house, buy a car, move banks etc so was well
          aware and able to manage his money as he wanted.


          • #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.


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


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