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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My Mother and Father are divorced (and live apart) but

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Hi, My Mother and Father are divorced (and live apart) but they haven't agreed a financial settlement due to my Mums terminal illness. She doesn't have long to live, but has said in her will that their property should be sold and given as gifts to whoever she has stated, can my Father object or insist on moving back into the Property which he hasn't occupied for 5 years, nor paid for, if the will is clear who should inherit, or will the deeds stand in the way?
Submitted: 1 year ago.
Category: Law
Expert:  Joshua replied 1 year ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

I am sorry to hear of your mothers circumstances. May I confirm that her will was made after she married your father please rather than before?
Is the property jointly owned or just in her name?
Customer: replied 1 year ago.

The will was made after the Divorce around 9 months ago when my Mum was advised she would not be able to get any further treatment.

They were married for 44 years, and lived in the Property for 30 and separation 5 years ago and Divorced a year later, but during that time my Mum was diagnosed with Cancer and my Father agreed not to sell so my Mum did not have any upset during treatment.

The property is jointly owned to my knowledge. My Father is insisting on taking everything which is very upsetting to my Mother who doesn't want him to take what she believes she owns.

The items of goods within it were purchased separately or contributed equally; they never owned a joint account.

My Father has not contributed to the upkeep of the Property for five years and there is no mortgage or other loan on the Property.

Sadly my Father is not the greatest role model, we all care for my Mum and he is trying to make plans on moving in and taking things, which is causing great distress to the family whilst we should be caring for the person who counts. To know he can't take what he can't have would be one less worry.

Expert:  Joshua replied 1 year ago.
thank you very much for the above. The first thing to ensure is that the property is owned by your parents as tenants in common rather than as joint tenants. If you are not familiar with these terms, the very important difference between the two is that if your parents own the property as joint tenants, in the event your mother passes away, the property will pass to your father irrespective of her will. By contrast, if the property is owned as tenants in common, the property will not automatically pass to your father but rather will pass under the terms of your mothers will.In order to determine if the property is held as tenants in common or joint tenants, you need to obtain a copy of the property title entries. If you do not have a copy, you can obtain a copy for 3 pounds from the land registry using the following link:eservices.landregistry.gov.uk/wps/portal/Property_SearchOnce obtained, cast your eye down to the "B - proprietorship register" which should be the second section. Look for your parents names. Underneath the names, if they hold as tenants in common as would be hoped, there should be an entry that reads "RESTRICTION: No disposition by a sole proprietor...". If there is no such entry in the B register then they hold as joint tenants and this would need to be attended to as a matter of urgency in order to sever the joint tenancy.they do already own as tenants in common or failing which, once the tenancy is severed which would need to be dealt with as soon as possible, then there will be a presumption that each of them own the property 50-50 there at your mother has a towards the capital of the property on her own for the last few years, it may be that a claim to a larger percentage could be sought in favour of your mother. This being the case, then your mother's estate would own her share of the property and the executors of her will can seek a sale of the property to pay her beneficiairies under the terms of her will. Any other assets your mother owns and has sole name would also form part of her estate and can be shared under the terms of her will in the same way.It is possible for your father to make a claim against your mother's estate if they have not obtained an order for financial settlement. If he intends to do so, he must make an application within six months of the date of grant of probate or he will be out of time. If he does make an application, he can seek reasonable financial provision from her estate. What is reasonable will depend upon the circumstances but such claims for married couples are dealt with in similar ways to how financial claims are dealt with under divorce proceedings. Your father would not like you do any better than he would have done had he brought the claim under divorce proceedings. The claim he can make is for reasonable financial provision and the court would have regard to his own financial circumstances in deciding any claim he may be entitled to. As above, if he fails to make a claim within six months of an application for grant of probate, he will be out of time.Your father would have a right to occupy the property in the meantime until either his claim is decided by a court or he is out of time to make a claim as above. If he runs out of time to make a claim, the executors of your mother's will can seek a court order to force the sale of the property and divide the equity on a 50-50 basis unless they can demonstrate your mother is entitled to a greater share of equity due to higher financial contribution as discussed above.I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and 2 other Law Specialists are ready to help you
Expert:  Joshua replied 1 year ago.
I hope the above is helpful? Can I help you with anything else or has the above answered your questions satisfactorily? If you could drop me a quick message to let me know I'd be very grateful.
Expert:  Joshua replied 1 year ago.
Have I been able to help you with all your questions on the above?
Customer: replied 1 year ago.

Hi There

Yes you were able to help, sadly the deeds are Joint Tenancy and my Father has clearly kept quiet for a reason. This means he will no doubt move in and will probably also dispute the remaining finances too because he can. Families!

We are going to tell my mum today that despite her wishes she cannot leave anything to the family because she has this Join Tenancy in place. She will be devastated.

Kind regards,

Sue

Expert:  Joshua replied 1 year ago.
Sue. Thank you for your post. I am glad the above was helpful. Please be aware that just because the deeds are presently held as joint tenants does not mean they must remain so. Your mother can change the joint tenancy position as long as she has mental capacity to understand what she is doing. If you would like any assistance in doing this I am happy to prepare documentation to change the tenancy position and provide instructions for service and registration - it is quite easy. I would propose a fee of £90 to prepare the relevant documentation which you mother would need to sign, and then register. Please let me know if this is something that you would like to proceed with. It must be done as soon as possible if your mother wishes to do it.
Customer: replied 1 year ago.

Thank you Joshua, my Mum is going into a Solicitor tomorrow local to her Home. However, my husband and I would like to retain your services as we don't forsee this issue going away for ourselves as we need him to firstly vacate our property in a civil fashion and also sell the other property if my Mum gets the deeds severed on time. I will go through and score your responses, you've been of great assistance. Thank you.

Sue

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