Can a Deed of variation be cancelled after a grant of probate has been given using it

linda44

As I mentioned in my original post "4 years after his death, Jane decided to do a deed of variation.
She hired a lawyer. it took 7 months to finalize." Father died in 2010 and deed done in 2015 thats 5 years after his death. If the Lawyer has done the deed of variation, between my sister and I, is it not valid?
How come it was accepted at probate and a grant issued and my sister has taken all his money from fathers account using the sealed grant. How can it be valid for this use and not for my transfer? Does any one know for sure the law?

linda44

"A deed of variation must be effected within two years of the date of death if it is being made for tax purposes, otherwise it will be ineffective for those purposes" I found this quote on a law website where you can order a deed to use. So may be it is effective for what we needed it for and not effective for tax purposes.

linda44

What I believe "for tax purposes" means that, if there was any inheritance or capital gains tax involved, which there wasn't. The property was valued at below the allowance for inheritance tax and it was not being sold, so no capital gains tax involved.

linda44

Please can someone tell me if her solicitor, who has agreed to do the transfer on 7th December has a legal obligation to do the transfer even if Jane tells him not to do it now, as she wants a share in the property. In the Deed of variation that the lawyer drew up and signed by both of us, it was mentioned that the executor, Jane, would use the said named lawyer, to aid her in obtaining the grant of probate and in the transferring of the property. Also it stated that I would pay all the fees charged by this solicitor for dealing with the whole process, in obtaining the relevant forms and grant of probate and including the transfer of the property. Which I have already paid for. Only on that condition did I agree to pay for her solicitors fees and to remove the caveat.
Please can someone tell me what I should do?

SuzieSue

linda44 wrote: »

Please can someone tell me if her solicitor, who has agreed to do the transfer on 7th December has a legal obligation to do the transfer even if Jane tells him not to do it now, as she wants a share in the property. In the Deed of variation that the lawyer drew up and signed by both of us, it was mentioned that the executor, Jane, would use the said named lawyer, to aid her in obtaining the grant of probate and in the transferring of the property. Also it stated that I would pay all the fees charged by this solicitor for dealing with the whole process, in obtaining the relevant forms and grant of probate and including the transfer of the property. Which I have already paid for. Only on that condition did I agree to pay for her solicitors fees and to remove the caveat.
Please can someone tell me what I should do?

The problem is that I doubt anyone on here is a lawyer so whatever anyone says will just be a guess. You need to seek proper legal advice.

rpc

The solicitor works on instructions from their client. If Jane is the solicitor's client, then they would require an instruction from Jane to make the transfer.

The solicitor won't do anything illegal (they can refuse instructions) but that doesn't mean that they are bound to do the right thing.

You need proper legal help. Get a shot across her bows with a warning about the consequences of not executing the will correctly. Then follow through if necessary.

As sole executor, nothing to do with the estate can happen without her say-so unless she is removed. It can be clear as day in the will or the deed, but she has to actually make things happen (either by doing it herself or by instructing her solicitor to do so).

System

linda44 wrote: »

What I believe "for tax purposes" means that, if there was any inheritance or capital gains tax involved, which there wasn't. The property was valued at below the allowance for inheritance tax and it was not being sold, so no capital gains tax involved.

From what I can find a DoV MUST be completed within 2 years.
E.G. from Dootsons Solicitors

Time Limits
Although a Deed of Variation can be done at any time from a tax saving point
of view, it must be completed within 2 years of the date of death and the
correct declarations must appear in the document and there must be no cash
payment given to any beneficiary as consideration for entering into the deed.
It is possible for a Deed of Variation to be done before or after the Grant of
Probate even after the deceased’s assets have been distributed.

linda44

Can she sell the house

SuzieSue

linda44 wrote: »

Can she sell the house

Yes, if she is the sole executor and if she has got probate. You should ring the Land Registry and see if there is anything you can do to stop her selling it.

linda44

I probated mother's half share of the house in 2006
Father and I were executors but in 2010 father died. I'm the only executor for half of the house which belongs to 4 of us not including Jane.
Can she sell the house?