What is the legal position?

[JOHN BISHOP]

I appologise if I am posting to the wrong Legal Forum, as it involves UNREGISTERED LAND (Which is still unregistered) as well as Probate etc.

I am one of 4 siblings. 3 sons and a daughter.

Our parents owned a House and an adjoining field of abt 5acres as Joint Tenants.

Some years before my fathers death they excerised a Deed of Severance and then held the whole property as Tenants in Common, and my parents Wrote identical Wills leaving their individual 50% shares of the whole to their 4 children.

Some years later he stated he wished to sell the field to my youngest brother who had already purchased an adjoining field and built a house on the land, and had obtained a valuation (Agricultural Value) from a Land Surveyor.

My other brother "blew his top" and told our father "you are off your ****ing head, the field could be worth £1M with planning in in future and you should leave to your grandchildren. At the time there were 5 Grandchildren his 2 Children and my sisters 3.

As a result my Father revoked his existing Will by Deed, and executed a new Will leaving everything to my mother, and appointed her Sole Executor.

My father died 20 years ago and Probate was obtained by her without the involvement of a Solicitor.

After my fathers death our mother executed a new Will appointing my youngest brother and my brother in law (a Solicitor) as Executors.

Within the requisite 2 year period from my fathers death I broached the subject of a Deed of Variation with her, I believed it would be beneficial for IHT Planning as it would Crystamize the Value of 50% of the Proberty as at the time of our fathers death, but not to act on my opinion but to take Legal Advice.

She asked me "what about the field which your father wished your brother to have?".
My reply was that if she wished to respect her husbands wish and that was also her wish, the could sell the field to my brother at the valuation obtained by our father, but given the time constraints of exercising a Deed of Variation, the Deed of Variation could relate purely to the Dwelling House and Grounds, excluding the field.

She took Legal Advice and a Deed of Variation was executed, (signed and witnessed) by her and all her children including my brother who claims he never signs anything without taking Legal Advice.

She subsequently sold the Field to my younger brother for the figure previously obtained by our father.

My understanding of the situation following the Execution of the Deed of Variation, (as far as the House and Grounds is concerned), is that our mother owned 50% and she held the remaining 50% as Trustee for her 4 Children, who eached owned 12.5% as Tenants in Common.

Before I complicate matters further, could you please me a definitive answer to the following question:

What rights to each of us half to dispose of our 12.5% share in Unregistered Land?

[efpom]

I am no expert on land law, but what I think you are asking is a) Can one shareholder sell his/her interest in the land. The answer, in my view, must be yes. b) What would be the open market value of the share? In my view the answer must be zero.

On b) the question arises:What stranger would buy a 1/8th share in land where the remainder is owned by a family?

Of course, if all of the shareholders agree to sell the land, the value would be the open market value and the price obtained, would fall to be divided in the proportions half to mother and a quarter of whats left to her children.

[JOHN BISHOP]

I am no expert on land law, but what I think you are asking is a) Can one shareholder sell his/her interest in the land. The answer, in my view, must be yes. b) What would be the open market value of the share? In my view the answer must be zero.

On b) the question arises:What stranger would buy a 1/8th share in land where the remainder is owned by a family?

Of course, if all of the shareholders agree to sell the land, the value would be the open market value and the price obtained, would fall to be divided in the proportions half to mother and a quarter of whats left to her children.

I do have some legal training (but not qualicifications recognised by the SRA) and have more knowledge that most laymen.

May I ask whether you have any legal training or qualifications?

[Amethyst]

I'm not sure what the deed of variation was for ? Your father had changed his will before he died to leave everything to your Mother.

my Father revoked his existing Will by Deed, and executed a new Will leaving everything to my mother, and appointed her Sole Executor.

Therefore on his death she became sole owner of the house and land.

It would then be her decision if she wanted to sell part of the land to one of her sons.

So was the Deed of Variation to vary your father's will to echo his original will that he had revoked ? So leaving his 50% split equally between his children rather than to his wife, but giving her a life interest in his 50% of the property/land? thereby ensuring any benefit gained from sale of part of the land was distributed between the children ?

It will really depends exactly what the deed of variation was as to what rights the children have at the moment ( ie prior to the mother's death ) over the property/land and If she holds it as trustee for the children on what terms ?