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Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Property Law
Satisfied Customers: 33325
Experience:  I have been a solicitor in High Street Practise since 1985 with a wide general experience.
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My brother died last year, both myself and his wife were

Customer Question

My brother died last year, both myself and his wife were appointed as executors of the will. My elderly mother who is very ill was granted permission in the will to live in the house until such a situation came up as the house was to be put up for sale.
My brother's wife has had an offer accepted on the property but can not exchange without vacant possession. The wife is now trying to force my mother out of the house without notice and has said in 7 days she must leave or she will instruct the bailiffs to
evict her. I am happy for my mother to leave but no notice has been given and we need to place her in a care home. Can you please advise whether my brother's wife needs to give notice and then go to court and if so how much notice does she have to give?
Submitted: 1 year ago.
Category: Property Law
Expert:  Clare replied 1 year ago.
HiThank you for your questionMy name is***** shall do my best to help you but I need some further information firstHow did your mother come to be living with your brother and what is the exact wording of the Will relating to her living there.Where does your sister in law live?Clare
Customer: replied 1 year ago.
Thank you clare. I have attached the will as it will take to long for me to copy word for word what is stated. The paragraph itself is small but I am not very good at using the computer. The paragraph is paragraph 4 on page 6 of the attached document.My sister in law lives in her own house
Expert:  Clare replied 1 year ago.
Hi
As executors did you have legal advice about the provisions of the Will?
How much is the property worth?
Clare
Customer: replied 1 year ago.
Yes, but my brother's wife is no longer a trustee. The property is worth £190,000.00
My mother has lived at the house for 12 years
Customer: replied 1 year ago.
I also live at the property if that makes any difference, but I am not so worried if I get evicted it is just my mother she is very ill and elderly
Expert:  Clare replied 1 year ago.
Did you ask the Solicitor who dealt with probate what the situation was regarding the house.
I assume that the sale has to go ahead before your mother receives the bequest that was left to her?
Customer: replied 1 year ago.
no, we have not as of yet due to lack of funding. Yes that is correct.
Customer: replied 1 year ago.
We just want to know if she can evict us to obtain fee occupation prior to selling the property or whether she would have to give us reasonable notice and go to court to get an order. My mother is very ill with pneumonia and so is in hospital at the moment and therefore we are worried that she will be evicted whilst still in hospital.
Expert:  Clare replied 1 year ago.
Could you raise a mortgage for the £90,000?
Customer: replied 1 year ago.
No not under any circumstances unfortunately
Expert:  Clare replied 1 year ago.
Unfortunately the clause in the Will that you are relying on would only have taken effect if your sister in law had died before your brother.You have sent me a copy of a letter sent two months ago warning you and your mother that you needed to move out, as well as the 7 days notice given recently.Since your mother is due to receive £100,000 from the Estate - indeed I assume from the sale of this property - she will have the resources to rehouse herself and accordingly your argument that it is short notice lacks some reality.Having said that your sister in law will have to take Court Action - although she can use the fast track procedure so it is unlikely to take more than a few weeks.It would be better however to negotiate with your sister in law, acknowledging that notice has been given but seeking further time to find appropriate accommodation based on the confirmation that the funds will be forthcomingI hope that this is of assistance - please ask if you need further details
Customer: replied 1 year ago.
Thank you for your answer, can you please provide the act or law that states that court action is required as my sister in law is looking to instruct bailiffs without court action as the letter states she is claiming that my mother is an excluded occupier thank you
Expert:  Clare replied 1 year ago.
From a pure property law position she is correct
However this is not a pure property law matter and accordingly your mother could apply for an Occupation Order - especially as the issue of the substantial bequest does not appear to have been addressed
It i would be a stretch to say that your mother has an interest in the property - but none the less she can apply for an occupation order allowing her a little more time to live there whilst the issue is resolvedhttp://findlaw.co.uk/law/criminal/criminal_courts/500625.html

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