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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8444
Experience:  I have been practising for 30 years.
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My mother has just died I am an executor of her will with my

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My mother has just died I am an executor of her will with my sister and brother, where I will inherit 40%. My mother had come to live with me and put her house up for sale before she died, which was sudden from a stroke. As my mortgage term was up at the end of last year she had agreed to pay it off from the proceeds of her house sale and she sent a letter to Woolwich (my mortgage) to agree to this. They then gave me to the end of this year and are in contact with the estate agents to confirm the sale. She had sold the house but unfortunately had not signed the necessary paperwork for the sale to go through, although the buyers are waiting for the probate. My sister has asked the solicitor about whether I would have a claim on the estate for this and the solicitor has asked me to sign an acknowledgement that I realize that the 'agreement is no longer in place'. Does this mean that I would have a claim?
Submitted: 4 months ago.
Category: Law
Expert:  F E Smith replied 4 months ago.

Was your mortgage to be paid off from the proceeds of the estate before the balance was distributed between you and your siblings?

Do your siblings accept that? It appears not because your sister seems to be asking you to relinquish that claim.

Is the repayment of your mortgage written into the will?

Is the only proof of this, the letter to the Woolwich?

How long ago did she make the promise?

After she made the promise, did you do anything differently? For example, did she make the promise to you, to repay the mortgage, if you allowed her to come and live with you?

Customer: replied 4 months ago.
My mum intended to make another will when she had paid off my mortgage and had the proceeds of the house and she was intending to pay my siblings some money too. How much I am not truly sure. She wanted to leave herself enough to live on and give my siblings some so they would not be jealous of me having some. My siblings demanded that they have some and my mum, myself and my siblings signed a piece of paper that if my mums house made £200 that she was going to give me and my sister £62000 each and my brother £31000, leaving herself the balance. They both new this. My mother made the will in 2004. The only proof is the letter to Woolwich. She put the house up for sale about last June. As selling the property took longer than expected I needed her to put it into writing probably October/November last year as my term of mortgage was up at the end of December. She was always going to live with me regardless if I had to move or not. But as she only lived 150 yards down the road from me for the last 31 years it was always going to be me she turned to. My daughter and I were her main carers even though she was still quite independent. She had Osteoporosis and was registered blind, though she could see to some degree. She did not want to leave this village.
Expert:  F E Smith replied 4 months ago.

Thank you for the extra information but it doesn’t quite answer the questions.

If your sister now alleging that your mortgage should not be paid off and that the proceeds of the estate should be paid in accordance with the 2004 will?

Was she giving you the extra money because he was going to live with you?

When did he say she was going to give you the extra money?

Why was the amount of money given to you and your sister, different from that being given to your brother?

Customer: replied 4 months ago.
My brother had taken over the farm when my father died. He was supposed to of paid her interest for the rest of her days at £200 per month, but my mum released him from this in around 1997 when BSE took hold and he had a divorce. In her will it states that she relinquished him from his debts.My sister wants me to acknowledge that my agreement with my mother is void as the will takes precedent.She was giving me the money because she wanted me to continue to live in this house and she wanted to live in this house in this village with me.She offered me the money when she knew I would have to sell my house to pay off my mortgage and she said she would sell her house and give me the money. She offered me this at around the beginning of last year. My mother was 90 years old, as she would say 'I still have all my marbles'. My daughter and I took several months to clean and de-clutter her home to get it into a sell-able position. Although it needs a lot of work and modernisation.
Expert:  F E Smith replied 4 months ago.

Thank you. That accounts for why your brother is getting less.

The issue appears to be over whether your mortgage gets paid off first and then the proceeds divided or not.

This should not hold up the sale of the house but could hold up the division of proceeds.

Obviously, your mother should have written a new will with this later provision for paying your mortgage off but that did not happen.

There was the intention to pay your mortgage off but not written in the will, only a letter to the building society and you would not be able to rely on that letter against the will.

There is a legal doctrine called Promissory Estoppel. This arises if a person makes a promise and whoever has been promised relies on that promise changes their position to their detriment. In that case, the promise can be enforced.

It cannot be enforced simply because it was a wish of the now deceased. In your case, you would have had to rely on the promise as would happen if your mother said to you, “I will pay your mortgage off if you let me come and live with you” and your mother came to live with you.

You could not rely on the promise if your mother said “I will pay your mortgage off because I want you to continue to live in the street”

In the second example you have not changed your position relied on the promise to your detriment.

Estoppel claims are not easy to bring and they are not without risk and you need to consider whether you want to go to court over this if your sister and brother steadfastly refuse to accept that it was your mother’s wish.

A legal action may cost many thousands of pounds the cost of which would normally be paid by the losing party.

It may have been her wish but legally, the court will take little notice unless that wish is put into a will except with regard to Estoppel which I have already mentioned.

Can I clarify anything for you?

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Best wishes


F E Smith, Advocate
Category: Law
Satisfied Customers: 8444
Experience: I have been practising for 30 years.
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