Will with conflicting codicils

usignuolo

My friend was recently left a house by her elderly uncle, or so she thought. He had promised to leave it to her in his will. For the last ten years he has been in poor health and has had a "lodger" who stayed rent free in exchange for keeping an eye on the old man. Four years ago the lodger maried and last year they had a baby. The couple occupy three rooms at the top of the house.

Her uncle originally assured my friend that the lodger was not on any official tenancy agreement and knew he had to leave when he died. After her uncle's death she went round to clear out some stuff and found the way was barred by the so called lodger, who claimed right of occupation. He and his wife have now occupied the whole house and told her she has no right of entry until probate is sorted.

When my aunt contacted her uncle's solicitor to sort out probate, she was advised that the lodger had produced a codicil, apparently signed quite recently by her uncle, using a different lawyer (one found by them), saying that they were entitled to live there rent free for the rest of his (the lodger's ) life without any expenses for maintenance, council tax etc. The old man's solicitor knew nothing of this.

Then a distant relative also got in touch. He is slightly more closely related than my friend, and he produced another codicil saying he should inherit 50% of the house and all its contents.

Both codicils seem to be valid and post date the original will and make a nonsense of it. So it is all a mess. My friend's uncle was very old and forgetful in later years, but was never officially diagnosed with Alzheimers or anything similar.

My friend has contacted a solicitor who told her that the lodger is quite within his rights to keep her out, as he is "in occupation" and he has advised her that it will take months, maybe years, to get him out and cost her tens of thousands in legal fees, which she does not have. The lawyer suggested she offer to buy him out but she has no money for this either.

At present she is thinking of just walking away but it is quite a valuable house. Does anyone know if she has any other recourse?

dzug1

A difficult situation.

Assuming everything is valid, then she could continue with probate, possibly jointly with the other relative, share the bills for maintenance and tax, and get the inheritance (ie her now 50%) when the lodger dies.

Another possibility would be to sell the house (encumbered as it is) and take whatever she can get for it.

Walking away is a possibility - leaving the other relative with the same problem If he walks away too then the estate may devolve to other relatives or ultimately to the Crown who would I imagine sell it for whatever they can get for it with the lodger in situ. I doubt if they'd want the management hassle of keeping it on.

Meanwhile of course no maintenance will be done and no Council Tax paid with (in the absence of probate) no recourse to anyone. I suspect the lodger would be forced to pay upfront with recourse to the estate for recompense.

It might land up as Council property....

CIS

Meanwhile of course no maintenance will be done and no Council Tax paid with (in the absence of probate) no recourse to anyone. I suspect the lodger would be forced to pay upfront with recourse to the estate for recompense.

If the propery is occupied then a probate exemption does not apply and Council Tax liability falls on the occupier - I would be contacting the council to advise them.

Biggles

If the codicil was merely aimed at entitling the 'lodger' to continue living as he had been doing, I would have thought this should be read as referring to the three rooms that they have been living in and should not prevent your friend from access to, and use of, the rest of the house.

Biggles

DimSum wrote: »

Who knows about the three rooms though? Nothing was official.

He had lived there for long enough for there to be plenty of anecdotal evidence from friends, relatives etc that he only occupied the top floor.

usignuolo

I also think they will want more than 3 rooms as they have another baby on the way.

Biggles

What they want and what the old man agreed to may well be two different things. They would have to negotiate (and pay rent) for anything extra.

Errata

Taking a different POV. It may be worth contacting the old chap's GP as there may have been a diagnosis of dementia recorded before either or both codicils were made. GP' s often have cause to strongly suspect dementia but may not always share that knowledge with the patient, or may share it and the patient forgets or disagrees with it. The suspected diagnosis is recorded on the case notes.

RWAP

The exact wording of the codicils and their dates are of relevance - most codicils say that they revoke all previous codicils - you need to submit everything to probate and ensure that probate is granted for everything. Once you have probate, the executors can approach the solicitors who made the codicils and ask to see the file and in particular whether there were any checks made on capacity, for example, was the lodger there in the room exerting undue influence?

This is a terrible situation and contesting probate can run up large bills and take a long time.

Without any written agreement or evidence of the rights of the lodger, they would be presumed to be given rights to occupy (although not exclusively) the whole house and the beneficiaries under the will could potentially go to court to exercise their rights to also occupy the house - not sure how the court would view this - would depend to some extent on size of house, length of time lodger been in occupation, and respective needs to live there.

In any case, the executors are responsible for ensuring that the property is insured and well maintained and that the rent from the lodger is collected. As to whom is responsible for all outgoings (council tax, gas, electricity etc) would depend on evidence of what was happening when the uncle was alive, as the rent paid by the lodger may have been all-inclusive, in which case you are going to be stuck!!

The better option all around would be to consider seeing if the lodger would agree to enter into a formal lease to take over the whole property on a formal footing - either for 6 months or longer - or depending on his finances, would they want to set up the property as a 99 year leasehold, and the estate just retain the freehold reversion (he would have to pay to acquire the leasehold, but would be able to sell that in the future).

Hope this helps.

Errata

DimSum wrote: »

A suspicion from a general practitioner wouldn't be enough.

That would very much depend on how it was worded in the case notes. A suspicion also gives grounds for questioning the solicitor(s) who drew up the codicils about their assessment of the client's mental capacity at the time.

Errata

A GP is highly qualified to make a diagnosis of dementia, and many do.