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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 70715
Experience:  Over 5 years in practice
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in the signing of a trust deed only one of the two parties

Customer Question

in the signing of a trust deed only one of the two parties signature is witnessed, something not discovered until the parties are deceased,does this invalidate the trust?
Submitted: 3 years ago.
Category: Law
Expert:  Jo C. replied 3 years ago.
Hi.
Thank you for your question. My name is ***** ***** I will try to help with this.
-Could you explain your situation a little more?
Customer: replied 3 years ago.

my mother died in 1983 and her son earlier this year.amongst his papers was a trust deed entered into with my mother. on the signature page my mothers signature was correctly witnessed but her sons signature was not ands the space blank

Customer: replied 3 years ago.

i have already replied!!!

Expert:  Jo C. replied 3 years ago.
Thanks
In order to be valid as a deed, a document needs to be signed delivered and witnessed and therefore whilst it does not take effect as a deed, it can, in certain circumstances, simply take effect as an agreement.
Can I clarify anything for you?
Jo
Customer: replied 3 years ago.

the document was a formal trust deed and not just an agreement. it required to be signed and witnessed by the parties involved. this was done but the signature of one party was not witnessed.

does this invalid the do

Expert:  Jo C. replied 3 years ago.
The deed may be because both parties signatures have not been witnessed.
However it is not uncommon for there to be 2 copies of the deed and one to be signed by one party (and witnessed) and the other one to be signed by the other party (and witnessed), and then they exchange documents. They are still perfectly valid because they are looked upon even though they are a pair, as being one deed. It is very common with leases in particular.
It depends whether there is one document signed by both parties or whether there are 2 documents with one signed by each.
Customer: replied 3 years ago.

there was only document

Expert:  Jo C. replied 3 years ago.
It is invalid then
Jo C. and other Law Specialists are ready to help you
Customer: replied 3 years ago.

trustee accepts deed is invalid but intends to apply it anyway on the grounds that it sets out the intentions of the two parties!.

Expert:  Jo C. replied 3 years ago.
Thanks.
Did you want to know something else about this?
I'm happy to continue with this but please remember to rate my answer.
Customer: replied 3 years ago.

my understanding is that this deed now has no legal authority The tenancy was tenants in common and the deed specifies my mothers contribution but nothing for the son who made no contribution to the purchase price. The trustee intends to award 50% to the son.Do i have grounds to object. would you like me to email to you the document. I' sorry about the delay, iv'e been in France sorting out a flooded cottage.

I'm really up against it now so if you could reapply soonest I would be very grateful

Expert:  Jo C. replied 3 years ago.
In the absence of a valid trust, and the absence of an agreement as to what would happen when a property was eventually sold, then even though the parties may have put different amounts of money in, or one may have but
nothing in at all, the sale proceeds are split 50-50.
I think this decision is quite unfair but it has already been decided by the courts in this case : Kernott v Jones.
If one of the parties moved out of the house and the other one continued to live in the property and to maintain it and even improve it, any contributions after the one moved out would be taken into account and would adjust the residents share accordingly. That is the only deviation from the 50-50 rule.
Under these circumstances therefore assuming there were no later contributions from one of the parties after moving out of the property or they both lived in it until such time as it was sold, then the proceeds would be 50-50 regardless of the fact that the son made no contribution.
The court looks at it that even though he made no contribution, your mother's thought to gift him half otherwise the property would have been in her sole name and not joint names.
I'm sorry that this answer is unfavourable for you.
Jo C. and other Law Specialists are ready to help you
Customer: replied 3 years ago.

hi, thank you it was as i expected. i have to be clear about the consequences for my mother.this is not straight forward I am away until next thursday. and will explain when i get back regards rob

Expert:  Jo C. replied 3 years ago.
No problem and all the best.

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