My Father's will was set up by my sister and brother, witnessed by partners. They won't sell, can I contest?

Question

My father was of ill health for a long time and I don't believe he knows what was in his will, it states that anyone from our family can use the house, and it should not be sold unless all agree. But I can't even enter the house, I'm not welcome. If it weren't for one brother and me keeping up the mortgage payments after Dad's accident, they wouldn't even have that house now. There are three siblins living there (four of us who don't) for free, they can afford to work part time and travel abroad twice a year, while I struggle to support my wife and two children. They asked me to sign a document making them trustees of the estate, and said they didn't know what it was for! When I spoke to the solicitor dealing with it she said if we couldn't agree, it would have to go to court and they would most likely make us sell it, but now she sais that she works for the estate and if we can't agree, I have to get a different solicitor and contest the will myself!!

Answer 1

It is not clear from your question whether or not your father is alive. It would appear that he is, but that he has sustained an accident which has made him gravely incapacitated. Presumably the solicitor, in saying that she works for the estate (which she can't do while your father is still alive) is saying that he has made her executor of his will and as such she can't represent individual beneficiaries. At least, then, he took legal advice before making his will, which is a good thing. Normally in a situation like this, with seven siblings benefiting under the terms of a will, there is what is known as a trust for sale and any one of the beneficiaries can insist on the sale of the property going ahead and the proceeds being divided. (It is possible that there is a clause in the will delaying the sale of the property while any of you wishes to live there.) As you and your brother have been paying the mortgage all these years, you would be able to claim advancement, i.e. a larger proportion than the other siblings, to compensate you for the money you've been putting in. If the three siblings already there want to go on living in the house, they'll have to buy the other four out. I'm puzzled by the document which you were asked to sign, but I suspect that the three in the house have applied to the Court of Protection for a receivership order to run your father's affairs as a result of his incapacity. http://www.opsi.gov.uk/si/si2002/uksi_20020833_en.pdf
This would give them the upper hand and depending upon the terms of the order, they might even be able to borrow money against the equity of the house.

There's another thing to be considered when the time comes to administer the estate. If your Dad can't afford to pay the mortgage, then presumably he won't be leaving much by way of financial assets. How are the inheritance tax and the solicitor's fees going to be met? Perhaps the house will have to be sold anyway. http://72.14.253.104/search?q=cache:Earu4R3UzC0J:www.direct.gov.uk/prod_consum_dg/idcplg%3FIdcService%3DSS_GET_PAGE%26siteId%3Den%26ssTargetNodeId%3D265%26ssDocName%3DDG_4016736+england+inheritance+tax&hl=en&ct=clnk&cd=1&gl=us

I notice that you say that the will was witnessed by partners of your siblings. That is most irregular, as while the witnesses aren't direct beneficiaries, they stand to gain.

Answer 2

Hi KBA,

You really do have a legal can of worms here.

For starters you say that the will states "all members of the family may use the property." This makes the class of people that can use the property potentially very big.

It is a legal requirement that all beneficiaries must agree to the sale before it can be sold.

As you paid towards the mortgage you can show an equitable interest in the property possibly being entitled to a greater share than those who did not contribute. You need to establish what percentage of interest you have.

There are a number of other legal nasties that could effect this some of which could get very messy.

You need to speak to an independent solicitor who specialises in wills and equity law.

Good luck.

Answer 3

I am an attorney and give you a few ideas to work on.
1. Your Attorney and theirs should be different if you are contesting the will.
2. Do not put your signature on any papers unless advised by court.
3. If you stop paying the mortgage, the lender will repossess the property and sell it within their own circle of buyers, not a public auction or actual price, its a practice used by people working for the lenders, so you all will be the losers.
4. The will should be verified by your attorney and also if it has been lodged with relevant authorities.
5. who were the witnesses, did they become witnesses under duress.

But all this will be explained by your own Attorney, find one quickly, must be a recommended Attorney.

Answer 4

You need to see a different solicitor, one that specialises in this kind of thing - I think its called probate?
And you need evidence of the mortgage payments. You'd be better off with the house sold and its probable that the payments would be taken into account in your favour, since you now have an investment in the house.

Answer 5

I am not an attorney, but I would think that first of all; 1. you should look at the will more closely; find out who this solicitor is and who she works for (co. firm. self.) As far as the will being set up by your parents and sign by your siblings, I would look into the legalities of family members being able to sign as witnesses to a document that they will benefit from, who did they sign it in front of. Was there an attorney involved at all in the creating and signing of this document? then if you don't have an attorney, then get one to look into this matter.

Answer 6

Best way is to get a lawyer and force the sell of the property, it can be done. Better to do it now, and get your own lawyer, separate from the others.

Answer 7

So stop paying the mortgage and it will get reposessed... f*ck em!!