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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 71039
Experience:  Over 5 years in practice
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My brother and father owned a house as tenants in common 50%

Customer Question

My brother and father owned a house as tenants in common 50% share each.
My father passed away and left his share to my mother.
My mother has been granted probate but has discovered my brother has changed the title deed to him being sole proprietor a month ago. How can he have done this? Is it legal?
If my mother tries to execute the will what is her position? What is his position?
She thinks he could go to jail if she executes the will and gets what is rightfully hers and is 80 and scared to do this.
If she does not she risks being thrown out.
Submitted: 3 years ago.
Category: Law
Expert:  Jo C. replied 3 years ago.

Thank you for your question. My name is Jo and I will try to help with this.

If the house is owned as tenants in common with your mother, the only way that your brother can have done this is either fraudulently or if your mother signed a transfer deed transferring the property into his name.

When your father died, your mother kept her share and your father share past in accordance with the terms of his will.

Even so, that half of the house could not be transferred until probate was granted and even then it must be transferred in accordance with the terms of the will.

At the moment the position that he has in is that he should be expecting the police to be knocking on the door if you raise this issue with them. This is fraud based upon the facts that you have given me.

If you are not familiar with title deeds, I suggest that you see a solicitor who will obtain the title deeds (you can get them from the land registry by following this link for £3!ut/p/b1/04_SjzS0tDQwMTIxMjLXj9CPykssy0xPLMnMz0vMAfGjzOKNjSxMDA1NjDwsjM3MDTxN3dyNDUNMjQ1MjPWDU_P0c6McFQH3SLFU/

Once you have the title deeds (the up-to-date ones) you can ask the land registry for a copy of the transfer which is the document used by your brother to transfer the property into his sole name. Once you have that document, you can then ascertain whether this was your mother's signature or what.

If it is not your mother's signature, you should immediately go to the police.

Can I clarify anything for you?
Customer: replied 3 years ago.
Thankyou Just to double check, And clarify My mother has only just got her grant of probate, my brother had the deeds transferred into his name dated end of June. My mum has not gotten a chance to execute the will until now so has not had her name on the deed.I don't see how he has done this legally. My father and he were tenants in common, so for him to become the sole proprietor and lift restriction A, can he just have used my dad's death certificate to do this . I thought he would have had to say my mum was an interested party even if he did not know there was a will or what was in it as she was my dad's living spouse. I think he knew there was a will but not the content and has either removed his name through his death cert but would he have to have provided more info than this to remove the restriction and become sole proprietor ? Is there any legal way he could have got round this? My mum has definitely not agreed to it. She was devastated but her solicitor is advising her not to execute the will if she wants him to stay out of trouble. This means she his advising her client to give up what is rightfully hers if my mum is scared of any trouble with him. Doesn't the solicitor have to act on my mothers interest and the wishes of the will? Does my mum's solicitor have to report fraud if she suspects . Is this not her professional duty? Is she acting unprofessionally?
Expert:  Jo C. replied 3 years ago.
You do need to check that your brother and father were indeed tenants in common because if they were not tenants in common but joint tenants the house would pass automatically to your brother. He doesn't need grant of probate to do that, he simply produces the death certificate of your father to the land registry and they will register it in his name. There is nothing improper in that at all. There is no restriction in the land registry deeds when it was registered in your brother and your father's name, "No disposition by a sole proprietor is to be registered et cetera et cetera without an order of the court", then it is joint tenants and your brother now owns the property. That issue is really important. You refer to the restriction site assume that it is in there. It is the case that if there is a restriction, he simply cannot deal with it without grant of probate and then it must be dealt with in accordance with the will.

Even if he did not know that there was a will, the house would be dealt with under the rules of intestacy and he would still need letters of administration from the probate registry. There is simply no way around that.

If there is a restriction, your brother quite simply cannot transfer your father's share to himself because he does not own it. It is left to whoever it's left with in accordance with his will. Whoever then gets it is the beneficiary in your father's will cannot have it registered in their name until such time as probate has been granted.

What your solicitor has said has basically confirmed what you have said which is that "your mother should not execute the will issue wants him to stay out of trouble". With respect, he should have thought about that. I cannot advise you on the family relationships between you. From what you have said, he has committed fraud it is as simple as that. The solicitor should report it to the police and the police should prosecute him. If that causes problems between the brother and your mother that is something that the pair of them will have to resolve between them. If he causes trouble for her, she refers that also to the police. The decision is entirely your mother's and my advice to your mother would be to ask the solicitor to write to the police advising them of this fraud and asking them to prosecute the son.

The solicitor is not allowed to report any fraud on your mother unless she specifically asks. However if your mother specifically asks, the solicitor is under a duty to follow your mother's instructions. The reason I'm suggesting that the solicitor reports the fraud to the police is that the police will take more notice of a letter from the solicitor. If the solicitor refuses to do that, then report the solicitor to the Solicitors Regulation Authority but ask the solicitor for a letter addressed to your mother confirming that this is fraud and then take that letter to the police.