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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.
May I ask if both your parents made wills please? If so does your fathers will provide that the property goes to your mother if she survives him?
Yes they both made identical wills - each giving their entire estate to the surviving spouse and then finally to be shared between myself and my brother. I currently have PoA for my mother as she has dementia and is bed bound and cared for here at home.
Would you be able to buy out your brothers share of the property after your mothers passing? Is there any right provided for in your mothers will allowing you to remain in the property for any period or does the will simply divide her estate between you and your brother equally without reference to any other provisions or rights in your favour?
Yes we could buy him out in that event. No there is no other provision in the will.
based upon what you say, your mother is not in a position to change her will due to lack of capacity and therefore the provisions of her will must stand. accordingly, based on what you say, your brother will be entitled to half share of the property upon your mother's passing.Accordingly, at that time you will have the opportunity to either agree a valuation for the property and buy out your brothers share at the valuation (or if you cannot agree based on the valuation determined by a court) or arrange to sell the property on the open market and each take your respective interests from the proceeds of sale.
If you decide to improve the property, then you can claim a larger proportion of the property than that provided to you by your mothers will based on your evidence of paying for capital improvements to the property. The burden of proof is upon you to show any capital improvements you have made and therefore it is important to keep receipts and invoices demonstrating any works you have carried out and showing that you have paid for them.
Thank you - If I have the property valued now, prior to any work, would this help the process in any decision making?
Sorry I missed the last sentence
Ideally, you would be able to reach a basis of an agreement with your brother before you carry out such works - i.e. the proposal to carry out improvements, and how you will reallocate percentage shares in the property between you based upon the works you propose. This is not essential in order to claim a higher percentage share, as this can be done with the above evidence on its own, however, coming to an agreement with your brother on the issue before you carry out such works reduces the likelihood of disagreement at a later date. If you are able to reach an agreement with your brother in this respect, it is worth recalling that agreement in writing in both signing a copy for future reference
Unfortunately my brother is not in contact with any of the family and wasn't before my father passed away. He felt they should both have been in a home. I don't have any contact details for him so an agreement would not be possible.
there are two principal bases for your claiming a larger share. the first is simply claiming back the costs of works carried out to the property before dividing the property equally between you; the second is to calculate the increase in value the works you carry out make to the property, claiming that improved value and then dividing the unimproved property value equally between you and your brother. There is no right or wrong way to agree the above and it is a matter of reaching agreement between you all in the event you are not able to reach agreement, the matter would be determined by a court on the basis of which appears to be the fairest approach in all the circumstances.
if you are not able to reach agreement with your brother, this is not prevent you proceeding but you should bear in mind the possibility of a disagreement in the future and therefore it is essential that you maintain a complete set of financial records showing how much you paid and in the event you intend to claim on the basis of capital improvement value to the property, ideally you would also have access to a valuation figure for the property in its unimproved state and a future valuation figure showing the value with improvement works carried out.
In that circumstance the way forward is to clearly document and accout for any spend we make to contribute to the running of the property and any improvements made and see what the future brings. Thank you for the advice.
Using this evidence you can seek to claim an increased share of the property based on your capital input to the property.
A pleasure. Have I been able to help you with all your questions on the above?
Yes it has provided the clarification I needed. Thank you.