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Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Property Law
Satisfied Customers: 33305
Experience:  I have been a solicitor in High Street Practise since 1985 with a wide general experience.
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Can a property assignment be overturned

Customer Question

Can a property assignment be overturned
Submitted: 2 years ago.
Category: Property Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question
My name is Clare
I shall do my best to assist you but I need some further information first.
What are the circumstances behind this question please
Clare
Customer: replied 2 years ago.

Brief synopsis


2000 Parents move to Northern Ireland and buy their house outright


2002 Mum diagnosed with Dementia (early stages)


2005 Deeds transferred to my name with Dad's solicitor. Mum and Dad have right of residence until they die.


2011 Dad died - house is not part of his estate. Dad was Mum's primary carer but did not have Power of Attorney. He acted as her Appointee.


2011 My brother is told about the house. He confirms this with Dad's solicitor. My brother has come from China to be my Mum's carer.


2014 Mum died in testate 9.5.14


2014- 6.6.14 My brother asks that the house be sold and the funds distributed between the three of us.


My brother is applying to the High Court in Belfast to have the assignment overturned on the basis that:


1. Dad acted illegally as Mum had dementia therefore was not competent to make this decision


2. I manipulated this for my own gain


3. Dad, the solicitor and myself have committed fraud


 


Points to note:


1. My brother visited twice in the 11years prior to Dad's death. For New Year in 2001 and in August 2011 when I told him Dad had 8 weeks to live


2. 2000 - 2009 my brother lived in Norwich


3. 2009-2011 My brother lived in China


 


 


 


 


 

Expert:  Clare replied 2 years ago.
Hi
Was your mother originally named on the Deeds?
Did she have mental capacity in 2005?
Have you made any financial investment into the property?
Clare
Customer: replied 2 years ago.

Yes as far as I know


It varied - some days she was very lucid and clear. She listened to all that was going on around her. I was not present when the assignment was made nor did I know of it until about 2008


No financial investment


 


My family and I invested our time to care for both parents.


My brother locked me out and refused me and my family access to Mum during the last 18 months of her life. He told everyone that his solicitor had advised him not to answer emails, texts, phone calls etc from me and not to let me in the house as I could evict him.

Expert:  Clare replied 2 years ago.
Hi
I am sorry - how could the property have been transferred into your name without your knowing it?
Clare
Customer: replied 2 years ago.

I mean I was not present during their discussions leading up to the assignment

Expert:  Clare replied 2 years ago.
Hi
Did the solicitor meet your mother - and obtain a medical report?
Clare
Customer: replied 2 years ago.
Yes to meeting with her. Don't know about the rest.
Expert:  Clare replied 2 years ago.
Hi
Who is in the property at the moment?
Clare
Customer: replied 2 years ago.
My brother
I had been there since 9th may but came home on 5th July. Am back tomorrow 11th July
Expert:  Clare replied 2 years ago.
Hi
Is there a Court Order saying that he os allowed to remain there?
What is the position of your other sibling?
Clare
Customer: replied 2 years ago.
No Court order
The assignment had a right of residence for both my parents until they died
My sibling agrees with him - I should sell the house and split the proceeds 3 ways
Expert:  Clare replied 2 years ago.
Hi
How much is the property worth?
Why have you allowed your brother to remain in the property?
Clare
Customer: replied 2 years ago.

£125,000 approx


 


To mourn / grieve for our Mum


 


 

Customer: replied 2 years ago.

£125,000 approx


 


To grieve/mourn Mum


 


 

Expert:  Clare replied 2 years ago.
Hi
That is very generous of you since it is clear that your brother currently has no right to live there
The answer to your question is that yes the court does have the power to put the Transfer of Equity aside if the court believes that there was fraud or that your mother did not have capacity to authorise your father to deal with the transfer.
However what is clear is that your father did have capacity - so his half of the property was properly transferred to you - all that is at stake shoudl be your mother's half - and one third of that also belongs to you.
I have to say that from what you have said there is a question mark over your mother's capacity to approve the Transfer - but that is an issue for the Solicitor to address
Please ask if you need further details
Clare

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