land split 3 ways

[des8]

Re: land split 3 ways

J

A beneficiary cannot be present as a witness when the testator (will maker) is making his will: Wills Act 1837,

Which section of the Wills Act states that please?
If a will is witnessed by a beneficiary that gift to the beneficiary (or spouse) is then void, but the will remains valid.

[Openlaw15]

Re: land split 3 ways

Will if that gift were void then the original will could not be valid as the will would have changed.

[Openlaw15]

Re: land split 3 ways

Which section of the Wills Act states that please?
If a will is witnessed by a beneficiary that gift to the beneficiary (or spouse) is then void, but the will remains valid.

The relevant area is testamentary capacity at common law, cases going back to the early 1800s up to modern times, ie Scammel v Scammel (2008). The law of wills is very complex. The material point however is the OP mother's will may have been invalid owing to undue influence, which again is a case going right back to the 1800s.

[des8]

Re: land split 3 ways

"Will if that gift were void then the original will could not be valid as the will would have changed."
Read sec 15 of the Act:Gifts to an attesting witness to be void.

If any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will.







Sorry, but my understanding is that in Scammel v Scammel the will was upheld despite the daughter having drafted the will, being present at the solicitors office when it was signed & the testator suffering from dementia when the will was signed. It was held there was no undue influence.

What OP's mother's will?...... she died intestate (post 14)
You stated something was in The Wills Act 1837 which is not & you have mis read the thread.

To clarify matters :
It appears the parents gifted a plot of land to daughter A.
To maintain an even handed approach to daughters B and J(ulie) it was "promised"/understood that the parents house would be left to B & J on the death of the parents.
A further plot of land was given to A, and a gift of £7000 each to B & J
On the mother's death the house passed entirely to the father.
A lives next door to the father and assists him.
A took the father to a solicitor (?) to make a will.
This will bequeaths the house to the three sisters in equal parts.
J feels this is unfair and wants to know if it can be challenged.

1) gratuitous promises, due to a lack of consideration, are not enforceable in UK courts.
The original "promise" by the parents is of no value
2) A will cannot be challenged until the testator dies.
3) In this case I doubt a case for undue influence could possibly be made in any event.
The father was taken to make his will. Presumably to a solicitors office,
The estate will be divided between the three siblings, which most people would consider to be fair, even if certain gifts had been made some years previously.

I would suggest the OP tries to speak to her father and A about the whole situation, as there is more going on than just a concern over the will.
What does B think about it all?

Certainly be very sure before employing solicitors specialising in contentious probate.
You will almost certainly find one to argue like Openlaw and suggest you have a case.
They will run up enormous costs writing to A's solicitor, who will run up similar costs replying.
Bottom line is the estate is depleted and an irreparable family rift opens up.

[Openlaw15]

Re: land split 3 ways

"Will if that gift were void then the original will could not be valid as the will would have changed."
Read sec 15 of the Act:Gifts to an attesting witness to be void.

If any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will.

Father v Julie

Hypothetically speaking if Julie's other sister were to unduly influence the making of her father's will any gifts that this, would be, testator makes will fail, as it would fail the first testamentary capacity test.



"Sorry, but my understanding is that in Scammel v Scammel the will was upheld despite the daughter having drafted the will, being present at the solicitors office when it was signed & the testator suffering from dementia when the will was signed. It was held there was no undue influence."

I never provided the ratio in Scammel v Scammel, I merely alluded that it is a modern undue influence case. Stick to the point otherwise it's just arbitrary commenting.

"What OP's mother's will?...... she died intestate (post 14)"

Mother

The material point was/ is that if OP mother's statement could be proven then any gifts on her death should have been in accordance with her intent. Her intent was to partition a specific plot of land behind the family home three ways. The facts were that mother died intestate. As there was no will the state would have decided the persons whom were eligible to make claims to their estate. If mother had no will then how could she leave it all to her husband. Husband must have made a claim.


You stated something was in The Wills Act 1837 which is not & you have mis read the thread.


To clarify matters :
It appears the parents gifted a plot of land to daughter A.
To maintain an even handed approach to daughters B and J(ulie) it was "promised"/understood that the parents house would be left to B & J on the death of the parents.
A further plot of land was given to A, and a gift of £7000 each to B & J
On the mother's death the house passed entirely to the father.
A lives next door to the father and assists him.
A took the father to a solicitor (?) to make a will.
This will bequeaths the house to the three sisters in equal parts.
J feels this is unfair and wants to know if it can be challenged.

"1) gratuitous promises, due to a lack of consideration, are not enforceable in UK courts."

Mother's estate

Lack of consideration means 'volunteer.' The law is that where a person intends on their death to impart a gift to any particularly beneficiary that the courts including its equitable systems ought to ensure that this testator's intent is executed. A promise is an obligation and an obligation where a gift applies does not require consideration, as equity would see that a gift intended for X beneficiary should be executed as such. The facts are that Julie's mother died intestate (without a will) so any will (albeit in this case being in absentia) would not withstand any gifts to Julie and her younger sister even if a will were a feature. Mother's estate went to father therefore which includes all property. Hmm how, if mother did not have a will? The only way this is possible if father, no doubt with assistance from the eldest daughter, were to make a claim to her estate to the state official (responsible for mother's estate). If Julie's claims are true and their mother did make a gift verbally and can prove this testimony of her younger sister (material witness), she could have a claim to the current estate as per her mother's intention, and the same applies to her younger sister. As for taking legal action, yes it could be costly but a property law lawyer may take it on given the worth of the entire current estate's value. The elder sister may have made the estate profitable but you still were deprived of your 1/3 so if the estate has increased in value so has your potential claim to the estate, as well as your younger sister.

"The original "promise" by the parents is of no value"

Entirely wrong..it is very much material in the court's equitable jurisdiction. It is more than a promise - it is essentially a mother contemplating a death bed distribution of her estate. You simply have no idea how gifts apply where property law is concerned.

"2) A will cannot be challenged until the testator dies."

Is this really relevant to the material matters?

"3) In this case I doubt a case for undue influence could possibly be made in any event." Wow, The father was taken to make his will. Presumably to a solicitors office, The estate will be divided between the three siblings, which most people would consider to be fair, even if certain gifts had been made some years previously."

Err no. The solicitor has a duty to take reasonable care - ie to the professional standards of an equivalent in his position. If the solicitor suspects that any will were to be made by unduly influenced, he has duty to cancel it or he will be sued for the equivalent by the disadvantaged beneficiaries.

Thankfully that most people are not lawyers or we'd have lay persons teaching us the law. It is not about most people view of fair or what is believed by them to be fair - it's what the law says.

"I would suggest the OP tries to speak to her father and A about the whole situation, as there is more going on than just a concern over the will.
What does B think about it all?"

Op states father is very ill and as she says, her father does not want to talk about it.

Certainly be very sure before employing solicitors specialising in contentious probate.
You will almost certainly find one to argue like Openlaw and suggest you have a case.
They will run up enormous costs writing to A's solicitor, who will run up similar costs replying.

The solicitor's costs would be against what the entire estate is with now. If the estate has benefitted by material financial gains, a property law may take this on a no win no fee basis. It is entirely up to you. You will need to provide evidence of your mother's verbal statement. Are there any pf her friends who are aware of this.

Bottom line is the estate is depleted and an irreparable family rift opens up.

Property law is not pleasant, it is not pleasant discussing wills in any event. However, it is not what us respondents think but merely providing impartial opinions. I have merely provided information that a claim is potentially there but not necessarily that you will be successful. It just depends on the steps your sister and father have taken to protect their selves.

[julie1958]

Re: land split 3 ways

Hi
Well your right about irrepairable rift........I only wanted some general advice, my eldest sister and her manipulating husband probably will end up with everything. I am at the stage now that if that happens they are welcome to it.

[julie1958]

Re: land split 3 ways

I know that feelings get in the way over situations like this, at the end of the day everything was fair and we all knew what was what when my mother was alive, and after her death because her wishes were not in writing, my eldest sister and her husband went to work on my father. My youngest sister agrees with me, we both know that my mothers wishes have been brushed under the carpet, and I now understand that theres not a lot we can do about it unless we spend a lot of money. But the comments from people saying that its all fair, and I shouldnt be moaning, well all I can say is I hope you dont have a sister and brother in law like mine

[Openlaw15]

Re: land split 3 ways

Julie you stat: "we all knew what was what when my mother was alive"

If you believe your elder sister and husband 'went to work on your father'....this could be criminal, ie fraud. fraud = a lie for a gain (by the fraudsters) or a loss by the victims. If the family knew what your mother's intent was but that the family lied to claim an interest in the estate...it is potentially fraud. If the estate was fraudulently held then the fraudsters are said to hold the estate on trust for you and rightful owners, ie your younger sister. Your situation is very complex and could get your family into serious trouble if what you say is true.

[des8]

Re: land split 3 ways

I am sorry to hear of your family problems.
Unfortunately it was only as your thread developed that we learnt more of the background.
Initially it was difficult to put your question in a context, and I apologise if I have caused you additional anguish.

As it will not assist you further I shall not continue the discussion with Openlaw here, but I wish you well and hope you find a way to heal the rift

[Kati]

Re: land split 3 ways

Julie you stat: "we all knew what was what when my mother was alive"

If you believe your elder sister and husband 'went to work on your father'....this could be criminal, ie fraud. fraud = a lie for a gain (by the fraudsters) or a loss by the victims. If the family knew what your mother's intent was but that the family lied to claim an interest in the estate...it is potentially fraud. If the estate was fraudulently held then the fraudsters are said to hold the estate on trust for you and rightful owners, ie your younger sister. Your situation is very complex and could get your family into serious trouble if what you say is true.

by the looks of it, Julie has decided to let things stand ... she came on here asking advice on a specific situation and has decided on a course of action. As outsiders there is no way for us to know if there was either fraud or malice involved, but I think it's time for Julie's decision to be accepted.

Hi
Well your right about irrepairable rift........I only wanted some general advice, my eldest sister and her manipulating husband probably will end up with everything. I am at the stage now that if that happens they are welcome to it.

[Openlaw15]

Re: land split 3 ways

The consensus seemed to be initially that there is nothing that Julie could do about it - if one looks for a simple answer one will find it. This is why I asked for clarification of the facts in detail. We have now learnt much more than we did before and that Julie/ her younger sister may in fact have claims against the current estate, notwithstanding the potential for fraud and remedies to claim interests in the land. Knowledge of contract law is helpful but this is an area of property law which has different rules: ie trustees (through land held on trust)...not just buildings ie homes. It's not just about whether gifts are valid but rather whether any claims exist currently.

[Openlaw15]

Re: land split 3 ways

I'll leave things as they stand. I have provided my opinion from various perspectives, albeit mainly in view of mother's estate. I will leave it that. I would not have done the OP any favours were I to have merely looked at things from a limited view without a thorough analysis.