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James Mather
James Mather,
Category: Family Law
Satisfied Customers: 22629
Experience:  Senior Partner at Berkson Wallace
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Our elderly mother is now in a nursing home. In her will she

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Our elderly mother is now in a nursing home. In her will she has left her property to both myself and my brother with the proviso that my brother remains living in the house during his lifetime or for however long he may so wish.

My brother, who is now in his 70s, is finding the house too big for him to manage and would like to sell and buy a small flat.

Would we be able to sell the house?
Is the property in your mothers name still?
Customer: replied 5 years ago.
Do you mean sell the house after your mother has died or sell the house now? Do you have a Power of Attorney or does your brother?
Customer: replied 5 years ago.
sell now. Our mother is in an EMI unit and suffers with dimentia. She has been in a nursing home for approx 7 years. We both have Power of Attorney.
Are you and your brother her only surviving relatives?
Customer: replied 5 years ago.
No. We have a sister. There was a family argument in approx 2003 and there has been no contact between my mother and sister since that date.
How is the Nursing home funded?
Customer: replied 5 years ago.
From my mother's personal income ie state pension, private pensions.
Selling the property is not a problem - your mother is not living there and there is no reason not to do so.
Purchasing another property is likely to be more of a problem since as Attorneys you can only take action that is in the financial interest of your mother and this purchase is of no benefit to her whatsoever.
Her Will has no relevance until her death I am afraid

is nothing legally to stop you selling the house and buying another smaller one

are under a duty to act in your mother's best interest, and you're actually not
able to use any of your mother's money for your own benefit. However, in these
circumstances I think the actions that you propose could be justified if they
were to be questioned in court.

house would still be at risk for the payment of care fees if ever your mother
is unable to pay for them

potential fly in the ointment is the estranged sister who may pop up out of the
woodwork and allege all sorts of wrong doing. Because of the circumstances I
cannot think what allegations she could make, but I mention it in any event.

is a potential issue with your mother's will depending on the wording and how
the house is described and if you sell it.

the will refers to "my house at numberXXXXX", then it is that house,
and in no other, so the replacement house, when your mother dies, passes into
residue and is dealt with under the residue terms of the will.

same applies if the house is simply referred to as "my house".

however the house is referred to as the house I own/live-in at the date of my
death, then it can be the replacement house. However, on a strict
interpretation if it says the house I live in at the date of my death, rather
than, the house I own, if she has never lived in it there is a very strong
argument which which then says that the gift fails and it falls into the
residue of the will. If you and your brother get everything that is left than
that isn't a problem, but if you and your brother were given the house and your
mother, thinking that there was very little else left, left everything else to
the cats home, the gift of the house fails, it falls into residue, and the cats
home get it.

that reason, it is essential to look at the exact wording of the will and to
read that in relation to what you propose to do with another house.

bear with me today because I will be online and off-line

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The thread remains open. Thanks

James Mather,
Category: Family Law
Satisfied Customers: 22629
Experience: Senior Partner at Berkson Wallace
James Mather and other Family Law Specialists are ready to help you
Customer: replied 5 years ago.
Please accept my apologies for the delay in responding to you. I would like to ask you further questions on this matter.

Could you please simplify the followinig:

the will refers to "my house at number 1 high Street,", then it is that house,
and in no other, so the replacement house, when your mother dies, passes into
residue and is dealt with under the residue terms of the will.

The residue in her will is to be shared equally between myself and my brother, unless we predecease her in which case it then goes to our children.

Am I right in that my brother and I could sell my mother's house to purchase another for my brother as long as her care fees can always be met.

As already stated we both have power of attorney and I notice that on the form it states:

I understand that I have a duty to apply to the Court for registration of this form under the Enduring Powers of Attorney Act 1985 when the donor is becoming or has become mentally incapable.

As our mother has been diagnosed to have dimentia do we have to apply to the Court for registration?

that is what is in the will, and that house has being sold, then that section
of the will does not apply to the replacement house.

then means that your brother does not have the right to live in the house
unless you allow him to and you get it equally between you to deal with as you

the care fees can always be met, there is no problem in selling the house and
buying another one subject to you being aware of what happens with the will.

think now is the time to apply to court to register the EPA.

only duty on you to register it is if you wish to use it to manage your mother's