A little help please.

[anon100]

I'm trying to help my uncle who i believe has been swindled out of his home.

When my uncle was 15 he was involved in a traffic accident and suffered brain damage. For 40 years he lived with my grand mother.

When my grandmother passed away 16 months ago my auntie appointed her self deputy for my uncle in the court of protection and as such was entitled to make decisions for him. (she is a retired police officer).

Prior to my grandmothers death my auntie was using my grandmothers savings to redecorate the house.

I copied this directly from the will.

---

I Give my freehold house situate at and known as ******** aforesaid TOGETHER WITH the furniture therein ("the house") to my Trustees to hold on trust for sale but with power to postpone the sale and in accordance with the following directions:-

my Son ("the Occupant") may live in the house and

use it as his principal place of residence so long as he wishes and without any charge

and so long as this paragraph applies-----------------------------------------------------

(a) the Occupant shall pay all Council Tax and outgoings and keep the house in good repair and insured to the satisfaction of my Trustees---------------------------------------------------------------------------------------

the house shall not be sold without the consent of the Occupant but my Trustees may sell it at the request of the Occupant and buy another residence to which the provisions of this paragraph shall apply

---

My uncle was told he was being put into temporary care (three weeks) while they change the boiler which he paid for.

While my uncle was in the care home for the boiler change, the house was sold to my aunties daughter for 30k below the market value.

Surely this is wrong?

My auntie and my dad were executers of the will, my dad was told by my auntie that everyone had agreed to the sale of the house. My dad had not seen the will and when the solicitor tried to read the will he cut her off and said he want nothing from the estate and gave his share to the other beneficiaries. On the way back from the solicitors my auntie started crying and my dad thought something is not right here. He spoke with my uncle and told the solicitor not to release the funds from the sale of the house. (At this point my uncle was still under the impression he was in the home for three weeks).

Every morning my uncle rings my dad and tells him not to let her get away with this, and that he wants his house back.

My uncles finances are now under the control of a solicitor, they sent my dad a letter this week asking for the funds to be released, this is strange as my dad is holding the funds on my uncles behalf. I decided to call them, they have not even been to see my uncle they pretended not to know that he was unhappy with the sale of his house. When i pushed them a little more they told me this was my fathers fault and he could get in trouble for not executing his role as executor correctly but they cant see that my auntie has done anything wrong.

To me my auntie has abused her role as deputy for my uncle and executor of the will but everyone i speak to says she has done nothing wrong.

Mentally my uncle is like a child and cannot look after himself but he has savings which would have allowed him to stay in his house with a full time carer.

My uncle really wants to take legal action against her but its so expensive and is there even a case?

Any help would be appreciated.

[james robertson]

Re: A little help please.

Have you contacted the Office of the Public Guardian, as a deputy you aunt must have their agreement to sell the house.

[anon100]

Re: A little help please.

Thank you for your reply. I think my dad has contacted them but i will check.

[james robertson]

Re: A little help please.

It would also appear that your uncle is the beneficiary of what's called an 'interest in possession trust' which was set up in your grandmothers will. Is your aunt one of the trustees? It seems from what you have said that she is attempting to use her appointment as deputy to decide for you uncle to sell the property. she has to be able to show that this is in the best interest of your uncle and under the terms of the will as quoted can only do so if she is buying a replacement home. She is also bound to obtain the best possible price in the interests of the trust. Selling it to her daughter, is unlikely to seen as obtaining the best possible price, especially if she failed to obtain professional advice first.. If she is not a trustee, she can't sell the house.

[anon100]

Re: A little help please.

Thanks again for your help.

The house has already been sold to the daughter at 40k less than the market value, the sale happened over a year ago and my uncle is now in care.

She was one of the trustees.

My uncle cannot look after himself, but with a little help he could have stayed in the house has he has sufficient funds to pay a full time carer.

Everything about this seems wrong to me but even the solicitor assigned to manage my uncles finances tells me that she has done nothing wrong.

My uncle was eligible for a complete new central heating system, the day it was installed she put him in the home and proceeded with the sale of the house. Telling my uncle its temporary while they install the central heating it will be nice and warm when you get back.

[james robertson]

Re: A little help please.

You mentioned your father gave up any legacy at the reading of the will, did he later sign anything confirming this? plus did he refuse to be executor at the same time? i'm assuming he was not made deputy at the same time as your aunt.

either way is it certain your uncle does not have capacity both then and now?
there is another question concerning the powers of the named trustees, do they have the power to appoint other trustees? it should state one way or the other in the will.

If your father is still executor and trustee then it will be down to him to act to ensure your uncle is properly taken care of.
I'm a little confused concerning the proceeds of the sale of the property, are they safe? what are the proposals for the future? Is it just your opinion that your uncle can live independently (with a carer) or have you got independent advice stating this is possible.

I'm reading between the lines and it does depend on the answers to the above, but I think this is going to cause a rift in the family, you and your father are going to have to make a decision about whether you want to start this off, and if you can live with the effects after hopefully winning.

Complaining to the court of protection is not cheap, nor is contesting the actions of an executor and you will require proof of your allegations.
You will have some serious decisions to make.

Another question, are there other beneficiaries of the will and are you one of them?

[anon100]

Re: A little help please.

You mentioned your father gave up any legacy at the reading of the will, did he later sign anything confirming this? plus did he refuse to be executor at the same time? i'm assuming he was not made deputy at the same time as your aunt.

He did not refuse to be executor, he just went along with everything as he trusted my Auntie and was told that everyone had agreed to what was happening. (My father had not spoken with my grandmother in 5 years) he wanted nothing from the will and said his share of the money can go to aunties son (like i said he thought highly of her).

either way is it certain your uncle does not have capacity both then and now?
there is another question concerning the powers of the named trustees, do they have the power to appoint other trustees? it should state one way or the other in the will.

The will does not state anything about appointing another trustee.

If your father is still executor and trustee then it will be down to him to act to ensure your uncle is properly taken care of.
I'm a little confused concerning the proceeds of the sale of the property, are they safe?

Yes they are still safe the solicitor who did the sale cannot release the funds without my fathers/aunties permission.

My father received a letter from my uncles court appointed financial deputy the other day demanding the funds be released. I called them they have never been to see my uncle and i told them the funds were being held at my uncles request and that he feels that he has been wrongly removed from his house. They continued to tell me that it was my fathers fault and he could face charges for not executing his role as executor correctly.

what are the proposals for the future? Is it just your opinion that your uncle can live independently (with a carer) or have you got independent advice stating this is possible.

My uncle lived with my grandmother for 40 years the last 10 of which he looked after her as she was blind. The house next door is owned by another auntie, IMO there were other options to look at especially when he has funds to cover the cost of a full time carer.

Another question, are there other beneficiaries of the will and are you one of them?

There are 6 siblings who are the beneficiaries,

[james robertson]

Re: A little help please.

Are you saying that the 'court appointed financial deputy' is a different person from your aunt?
Why do they want to release the funds? I shouldn't worry about the implied threat, your fathers duty as trustee is to act in the best interest of your uncle within the restrictions place upon him by the terms of the trust, if he is doing that he has nothing to worry about.

The small section of the will shown says the trustees can only sell the property if they are going to buy a replacement, this normally allows for buying a more suitable property for the person concerned, downsizing etc. but the interest in possession still means your uncle has a beneficial interest in all the assets of the trust, this would normally mean any assets, property or cash or investments. Your uncle cant sell the assets, but is entitled to any income resulting from any surplus invested as well as use of the residence provided for the rest of his life.

So the question is what plans do the trustees have for the proceeds of the sale? presumably your father wants if possible to provide a new home for your uncle, but what does the other trustee want to do? You will need to get an appraisal of your uncle to show that his wish is actually feasible.

[anon100]

Re: A little help please.

Are you saying that the 'court appointed financial deputy' is a different person from your aunt?

My aunty stepped down after the sale of the house.

Why do they want to release the funds?

I suspect they billed my uncle for sending out this letter. They have never been to see him.

So the question is what plans do the trustees have for the proceeds of the sale? presumably your father wants if possible to provide a new home for your uncle, but what does the other trustee want to do? You will need to get an appraisal of your uncle to show that his wish is actually feasible.

4 of the siblings including my uncle want him to have his house back. My uncle does not want to live anywhere else. He believes he has been wronged by my auntie. He calls my dad every day asking him to help him and not let her get away with this.

[james robertson]

Re: A little help please.

My aunty stepped down after the sale of the house.
So she is now only one of two trustee/executors then. And the Deputy is appointed by the Court of Protection yes?

It might be more useful, if an added expense, to have the financial Deputy replaced by your father. he is surely going to better than a stranger looking after your uncle's interests. Quite how you are going get back the house from your aunt's daughter I'm not sure, unless you can persuade her to reverse the sale under the circumstances. Taking her and her aunt to court will not be cheap or easy. If you can show the sale went through without agreement and against your uncle's wishes. Being able to prove it went through below market price will be very important as well.



I suspect they billed my uncle for sending out this letter. They have never been to see him.
They will charge your uncle, but you didn't say whether they gave a reason for wanting the funds released (your uncle does not own the funds, he has 'an interest in possession' in the assets of the trust. The deputy can't spend the money.



4 of the siblings including my uncle want him to have his house back. My uncle does not want to live anywhere else. He believes he has been wronged by my auntie. He calls my dad every day asking him to help him and not let her get away with this.

It might be too expensive to undo the 'sale' It might be more expedient to persuade your aunt and her daughter she might prefer (rather than be taken to court) to increase the payment for the house this is assuming you can make your uncle happy in another house - that might be warmer, more convenient and more suitable for him.
Undoing the sale, even if you could get them to sell it back to the trust will involve stamp duty and other fees as well.