What applies a deed of trust or a will when they appear to be in conflict?

dacdac

tacpot12 said:

Without a loan agreement signed by the person receving the loan, I can't see a court enforcing the debt. While contracts can be verbal, it would be daft to rely on a verbal agreement for such a large loan.

And it would be unusual for a solictor drawing up wills to not want to see the loan agreement, so it's perplexing as to why the solicitor included mention of a substantial loan without seeing the loan agreement. 

The details of the loan are clearly set out in the will: no interest, no fixed term, only the original sum needs to be paid to the estate. Since the daughter is saying she's accepting the terms of the will, that shouldn't be an issue.

What isn't clear - OP hasn't made any mention of the point - is what the parents' wills say about their share of the house/who inherits that, and whether the point of OP's post is that the daughter is now trying to claim 100% ownership.

The will just mentions the loan and that it will be brought into account and that the value will be the value of the gift less any repayments. It makes no reference to their ownership of the house. Yes the daughter is claiming 100% ownership of the house.
my main concern is that although the daughter is accepting terms of will I can’t see that it compels her to repay the loan within a certain timeframe. Could she take the position that the loan will be repaid when the property is sold and then just continue to live there for the next 30yrs while the true value to the estate depreciates.

dacdac

Keep_pedalling said:

Seems to me that any loan that was originally made was repaid when the deed of trust was made so the loan no longer exists. 

Yes and me, I just can’t believe that the solicitor who drew up the DOT and the wills has made such a mess.

dacdac

Marcon said:

Keep_pedalling said:

Seems to me that any loan that was originally made was repaid when the deed of trust was made so the loan no longer exists. 

But the daughter is saying DOT is preceded by the will (i.e. the will takes precedence over the DOT), so she is clearly accepting there is a loan to repay. I'm still trying to work out why OP thinks there is a case and what that case actually is.

Two main concerns. she is saying there is a loan to be replayed but I believe there is no time constraints as to when she repays the loan, so could be settled in 30 years time by which time the value will impacted by inflationary depletion.
I think the DOT is valid and states the net proceeds of the sale of the property is split by the % of ownership. As the property value has increased over the last 15 years and the true value of the initial loan has depreciated over the same timeframe the delta between the two is large. So I can see why the daughter does not want the DOT to be applied.
interestingly we have received a draft estate account from the Fathers probate solicitor and it has a line item for the DOT which shows a % of the original property purchase price which equates to the same value as the loan.

Keep_pedalling

dacdac said:

Marcon said:

Keep_pedalling said:

Seems to me that any loan that was originally made was repaid when the deed of trust was made so the loan no longer exists. 

But the daughter is saying DOT is preceded by the will (i.e. the will takes precedence over the DOT), so she is clearly accepting there is a loan to repay. I'm still trying to work out why OP thinks there is a case and what that case actually is.

Two main concerns. she is saying there is a loan to be replayed but I believe there is no time constraints as to when she repays the loan, so could be settled in 30 years time by which time the value will impacted by inflationary depletion.
I think the DOT is valid and states the net proceeds of the sale of the property is split by the % of ownership. As the property value has increased over the last 15 years and the true value of the initial loan has depreciated over the same timeframe the delta between the two is large. So I can see why the daughter does not want the DOT to be applied.
interestingly we have received a draft estate account from the Fathers probate solicitor and it has a line item for the DOT which shows a % of the original property purchase price which equates to the same value as the loan.

This is probably one of those cases where having a solicitor handling probate is a good idea.

dacdac

Alphatauri said:

I agree with pp too many unanswered questions.

However, if the DoT is tenants in common I would start by spending £3 to get hold of the Land Register to confirm this was registered. https://www.gov.uk/search-property-information-land-registry

I did get a copy of the title register and there is no mention of the parents only the daughter. In the draft estate accounts for the Father the solicitor did mention some charges for Land Registry fees so maybe this was to remove them? Is it possible to get information on historical changes to ownership or charges?

getmore4less

The loan and deed could both apply.

The loan funded the purchase by the daughter could still be outstanding.

Then the DOT created a gift back to the parents of part of the property.

The land registry only deals with the legal title.

The DOT created a beneficial interest to the parents of part of the property.

JJWSJS8700

dacdac said:

Alphatauri said:

I agree with pp too many unanswered questions.

However, if the DoT is tenants in common I would start by spending £3 to get hold of the Land Register to confirm this was registered. https://www.gov.uk/search-property-information-land-registry

I did get a copy of the title register and there is no mention of the parents only the daughter. In the draft estate accounts for the Father the solicitor did mention some charges for Land Registry fees so maybe this was to remove them? Is it possible to get information on historical changes to ownership or charges?

Land registry do give information for historical owners and changes, there’s a form and small fee to pay, they email the information, bot on website, you’ve got to contact them and request.

Marcon

dacdac said:

Keep_pedalling said:

Seems to me that any loan that was originally made was repaid when the deed of trust was made so the loan no longer exists. 

Yes and me, I just can’t believe that the solicitor who drew up the DOT and the wills has made such a mess.

Maybe they didn't. I think getting yourself some professional advice from someone who has seen all the documents is your next step - really no merit continuing to speculate here and prolonging what might quite possibly be causing yourself needless upset.

sharpe106

Surely first point of call is to have a discussion with the person who drew them up. They might be able to make it clear to you as at the moment you only seem to have what the daughter is saying. She might have misunderstood what she has been told.  

JJWSJS8700

Who are the Executors?

What did your parents want doing with ‘their’ 40%?

Did the daughter care for her elderly parents whilst
living in her home, so they provided the funds interest free/term less as ‘pay’.

Yes some solicitors definitely send you down the wrong path,
whilst their bill rises, so yes look here and other websites for as much info as possible before you sign that letter of engagement, plus no one can demand the will writer shows the paperwork/will preparation statements, until you have a claim on the estate/misconduct.