How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Joshua Your Own Question

Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
35043042
Type Your Law Question Here...
Joshua is online now

Good evening. In summary: three years ago my sister

Resolved Question:

Good evening.

In summary:

three years ago my sister commenced proceedings under the Inheritance act (financial provisions). Part of the claim was that a property my wife and I own was to be considered part of the estate under section 9 of this act. After disclosure this part of the claim was discontinued against both of us. My wife took no further part as a defendant and the court order showed this at the following CMC hearing. I remained a defendant as i was also a joint executor.

the case was settled at mediation and a tomlin order and heads of terms agreed.

all payments have been made bar a retention of £30,000 against the claimants settlement as it has since been discovered that the claimant has retained a unilateral notice on our property.

the property or any unilateral notice was not part of the tomlin order or the proceedings. the section 9 claim was discontinued in May 2012 and the settlement was agreed in January 2014.

our view is that they have retained the unilateral notice unlawfully so we applied to the land registry to have it removed as we are now in the process of selling it and this is how we came by the knowledge of the unilateral notice.

they are now claiming interest and that i (as executor) are in default of the tomlin order so they are therefore entitled to a) retain the unilateral notice and have therefore objected to the land registry for its removal and b) interest is now due on the sum in default

the terms of the tomlin order did not include any interest in default of any of the payments or allow for a unilateral notice to be retained or removed on our property.

we are now at an impasse and would appreciate your view on this.
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

For the avoidance of any doubt please from what you say there is no basis for interest provided for in respect of the order. Is this correct please?

Joshua :

Has the registrar made an initial decision as to whether it considers the other party has grounds for objection yet please - I imagine it likely may have found they have grounds?

Customer:

there is no basis for interest in the order

Customer:

the objectio is being reviewed by the lad registry at this moment and I await there decision, however my concern is should they have even retained the unilateral notice on the property given the discontinuance of the claim against both of us and the property was not part of the estate or discussions at mediation as the claim had been discontinued

Joshua :

Thanks for the above. My aplogies for the delay in reverting to you.

Joshua :

The Land Registry will not remove a UN until either the beneficiary (your sister) applies for withdrawal or you the proprietor apply for cancellation. There is no duty on HMLR to actively manage UNs on properties.

Joshua :

The Registry will consider your sisters objections and your evidence and mae a decision if your sister has any grounds for her objection. If they are satisfied she has grounds - she does not need to prove her position but just establish there is a basis for an objection - then they will encourage the parties to resolve the matter between them.

Joshua :

You will wish to submit a copy of the Tomlin Order pointing out there is no provision for interest in the same and accordingly your sister cannot claim interest. It is not possible to claim monies other than as explicitly provided for in the TO. If she wanted to claim interest on the money agreed she should have requested that interest was included. If it isn't in the order she can't have it.

Joshua :

Having said that if some payments of capital order by the Tomlin Order have not yet been made when the TO provides that they should have been by now, you will wish to give consideration to making such payments as failure to make a payment under a TO gives your sister the right to apply back to court which would be an unwelcome delay.

Joshua :

If payments are outstanding you will wish to give consideration to making the outstanding payments due under the order. On this basis you can demonstrate to the Registrar that all payments under the TO have been discharged and your sister has no basis for a claim against your property. She cannot sustain a UN on her word alone - she must have evidence of an interest which from what yous ay at present she may have if she can present a TO which has outstanding capital payments due under it.

Joshua :

As above if you can provide evidence of discharge of all payments due under the TO to the registrar the registrar will have a basis on which to find she has no grounds to sustain the UN. In addition you may even be able to pursuade your sister to voluntarily give up the UN on receipt of the outstanding capital payments unless she will also seek interest which is groundless.

Joshua :

In the event that the registrar finds she has grounds and you cannot reach agreement about how to resolve your differences the matter will proceed to a first tier property tribunal which will decide the matter. If there is no basis for her continuing claim because all payments have been discharged then the tribunal must find in your favour and you can make an application after their decision to the Registrar for your costs on the basis that she behaved unreasonably

Joshua :

A claim for costs must be made within a very short time (15-20 days from memory) following the tribunals decision if you want to claim costs.

Joshua :

Is there anything above I can clarify for you>

Customer:

Good morning Joshua

Customer:

thank you for your comprehensive response.

Customer:

my main concern was that the claimant had never ever mentioned the UN and had discontinued the claim on this property a long time ago. the intial delay on paying the funds from the estate is an estate matter as is any interest if it were due under the order.

Customer:

The claimant has simply maintained the UN against the settlement and order and now are using it as leverage against one of the joint executors. if they were entitled to secure the payment by a 'legal charge' and securing against the properties of the executors then the appropriate application ought to have been included or made.

Customer:

thank you for helping on these points and I await the land registry response.

Joshua :

Thanks for the above. May I clarify that the estate is still under administration please? i.e. there are still funds in the estate that have not been distributed from which payment can be made?

Joshua :

In addition am I correct to believe that the TO makes no reference to security against your propertybut rather gives your sister a right to defined monies from the estate?

Customer:

Hi Joshua. yes you are correct it was purely a payment of money order. I had to contribute £6500 personally to the estate to assist in this and that payment was made by me, and then went onward to each recipient. There were three beneficiaries in the estate and tomlin order. I was not a beneficiary, just an executor. the estate was short of funds to settle all the legal fees, hence my contribution. the estate had a value of about £240,000.00 and my property was proved to not be part of the estate, which is why the claim under section 9 was discontinued.

Customer:

there was no references to any security or other property, just the cash in the bank to be distributed

Joshua :

Thank you. On these grounds you will wish to point out to the Registrar that your sister has no benefit of any order against your property and no grounds for security nor an interest in the same providing a copy of the Tomlin Order for their reference and on this basis ask the Registrar to remove the notice on the basis of no grounds for her objection. They have this power if they are satisfied there is no ground for her objection.

Joshua :

in addition, you may consider writing to your sister advising that you consider that her objection is without grounds on the above basis and accordingly you will be seeking costs against her to include any losses you suffer as a direct result of her unfounded objection. this may encourage to rethink her position in and of itself.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help with any further?

Customer:

I think that covers it very will, once again Joshua thankyou very much for your comprehensive response.

Joshua :

A pleasure. If I can assist any further as the situation develops please do no hesitate to let me know.

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and other Law Specialists are ready to help you

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Jo C.

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
< Previous | Next >
  • http://ww2.justanswer.com/uploads/EM/emus/2015-7-7_192327_bigstockportraitofconfidentfemale.64x64.jpg Jo C.'s Avatar

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
  • http://ww2.justanswer.com/uploads/BE/benjones/2015-12-1_0437_ennew.64x64.jpg Ben Jones's Avatar

    Ben Jones

    UK Lawyer

    Satisfied Customers:

    11553
    Qualified Solicitor - Please start your question with 'For Ben Jones'
  • http://ww2.justanswer.com/uploads/BU/Buachaill/2012-5-25_211156_barrister5.64x64.jpg Buachaill's Avatar

    Buachaill

    Barrister

    Satisfied Customers:

    1754
    Barrister 17 years experience
  • http://ww2.justanswer.com/uploads/JO/jojobi/2013-3-19_0265_maxlowryphoto.64x64.jpg Max Lowry's Avatar

    Max Lowry

    Advocate

    Satisfied Customers:

    894
    LLB, 10 years post qualification experience
  • http://ww2.justanswer.com/uploads/UK/UKLawyer/2012-4-12_9849_F2.64x64.jpg UK_Lawyer's Avatar

    UK_Lawyer

    Solicitor

    Satisfied Customers:

    750
    I am a qualified solicitor and an expert in UK law.
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    402
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Lawyer

    Satisfied Customers:

    8199
    LL.B (Hons), Higher Prof. Dip. Law & Practice