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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33290
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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My fathers Will left 25% of everything to each of his four

Customer Question

My father's Will left 25% of everything to each of his four children.

It was always made very clear that by my father that no beneficiary should have an unequal share. However in order to get a mortgage on his last property, he was asked to add the name of my sibling to the mortgage and by way of a deed of trust which simply states a 5% is in his name whom I shall here on refer to as “B”.

“B” has stated that this was a “favour” to my father. My father returned this favour several fold, buying his air tickets, paying off some of his debts, ensuring he had a the money and assistance to move into his own house during the years my sibling was unemployed. The payments paid to him were never returned by “B”. “B” has never paid towards the mortgage or deposit or has been involved in anything to do with the property, even after my father passed away.

The property was eventually sold by the executors and they paid “B” 5% of the sale value which was five time more than the purchased/mortgaged value. In effect “B” received £50,000 for putting their name to a £180,000 mortgage. The the property was always worth more than the mortgage and the mortage has been paid on time every month and did not pose a financial risk to “B”.

I have heard I need to prove “B” has not paid anything towards the mortgage, can I ask the mortgage company for this information (and will be provide it to me.)

Otherwise would it be equally possible to show that as “B” was out of work for most the time and had no means to pay in any event. “B” may claim that he has suffered or could have suffered because he took on the burden of the mortgage, however the fact is “B” was not working for a large part of the time and needed to borrow money from my father. (In fact "B" changed his name to avoid their own debts.) My father was so worried about “B’s” large debts (which had amounted to over £60,000.) My father considered that as the property was worth £1,000,000 and if a charge was put on “B” 5% share, my father would need to find £50,000 to remove the charge before he could sell.

Unfortunately my father did not get round to removing “B” name from the Deed. When my father passed away “B” went to the property and moved bank statements relating to the mortgage and removed my father's computer. (He refused me access to my father’s property for nearly 6 weeks.)

I accept that it may be for me to prove “B” did not contribute and “B” may have a counter argument that there was a risk as co-mortgagee, but it was not my father’s intention to give an extra 5% share of his property away and "B" has done all he can to prevent access to mortgage statements.


My question is;
1) Do I have to prove “B” has not contributed and how can I prove that?

2) “B” has stated they put their name of the mortgage as a favour to my father, does this make any difference to their claim because it was "a favour."

3) “B” did not take any substantial risk as the price of the house covered the cost of the mortgage and included a 30% deposit paid by my father, and eventually there was in fact 400% equity.

If “B” tries to claim there was a financial risk, is it relevant that there was never any financial risk as the property held a lot of equity and the mortgage payments were always made, even after my father past away.

Conversely “B’s” name on the Deeds has caused a financial risk to my father due to the amount of debt "B" has accrued. Furthermore “B’s” credit rating was never linked to the property and even if there was a default, it would not affect "B" substantial, especially as this sibling’s credit rating has is terrible and he changed his name from that of those on the Deeds in order to avoid debts.

4) In the scenario where it is shown “B” did not contribute anything, but states “B” took a financial risk, should his compensation for be in proportion to his risk. There is no mention of a financial risk in the Deed of Trust and there is no agreement between “B” and my father that any compensation would be due. If after all this the court sees fit to award compensation for taking a financial risk, can the court award an amount which is proportionate to the risk. For example £50,000 compensation to help secure a £180,000 secured mortgage may seem unreasonable dispensation.
Submitted: 2 years ago.
Category: Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare and I will do my best to help you
There are two documents here - a Will and a Deed of Trust.
Do you accept that your Father signed both of these documents?
Do you have any reason to beleive that he was under duress or did not understand what the Declaration of Trust meant?
Clare
Customer: replied 2 years ago.

Yes I believe he did sign both documents and he was competent.

Expert:  Clare replied 2 years ago.
Hi
Was the Will made before or after the house was purchased?
Clare
Customer: replied 2 years ago.

After

Expert:  Clare replied 2 years ago.
Hi
So at the time he made the Will he was fully aware that your sibling would be getting 5% of the equity in the property under the terms of the Declaration of Trust?
Clare
Customer: replied 2 years ago.

Only if that was his intention. But the intention was not to give him 5% of the property, but put 5% in his name to obtain a mortgage.


 


He would not have known that my sibling would behave like this, or indeed he was about to die.


 

Expert:  Clare replied 2 years ago.
Hi
In fact your father did know that your sibling would get that money.
The Declaration of Trust was signed not to give your sibling 5% but to ensure that he would not get the 50% that his being a joint owner of the property (essential if he was on the mortgage) would otherwise have entitled him to.
Whether or not he has paid anything towards the mortgage the Declaration of Trust means that he had that interest in the property - whatever else he did or did not do - so to that extent the points you ask are not relevant since you cannot over turn that Document.
Given that the Will was made AFTER that Declaration was made there id no reason to beleive that he was not content with the situation as it stood
I am sorry - I know that this is not what you wish to hear - but there is no action that you can take to overturn the arrangements that your father put in place
Please ask if you need further details
Clare

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