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

dacdac

sharpe106 said:

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.  

The daughter has provided a letter from the solicitor firm who drew up DOT and wills. It says “ while we can see the two documents appear to be in conflict, we agree that your position is best set out in clause x in the will. 

It then says ‘ as we understand the property is not going to be sold you are therefore only required to repay the loan less any repayments.

We will have our own conversation with the solicitor but wanted seek professional advice first.

dacdac

JJWSJS8700 said:

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.

The siblings are executors and equal beneficiaries.

The parents never discussed their wishes only saying that everything will be shared equally.

no the daughter did not provide any care. Mother did have carers towards the end which she funded from her pension.

Keep_pedalling

dacdac said:

JJWSJS8700 said:

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.

The siblings are executors and equal beneficiaries.

The parents never discussed their wishes only saying that everything will be shared equally.

no the daughter did not provide any care. Mother did have carers towards the end which she funded from her pension.

But it won't be an equal distribution if it is going to be based on the loan rather the value of their share of the property. You need separate legal advice. This could get very expensive and very messy especially if a challenge was taken the whole way. 

JJWSJS8700

Is the daughter offering to pay immediately the loan minus repayments already made?

Would the siblings be satisfied with that or is it a major difference?

Or is the daughter going trying to string it out for the next 30yrs?

You are all within your rights as Executors/beneficiaries to view the paperwork for Wills/Declaration of Trust, starting with Larke v Nugus, then the Legal Ombudsmen if no joy.

dacdac

Keep_pedalling said:

dacdac said:

JJWSJS8700 said:

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.

The siblings are executors and equal beneficiaries.

The parents never discussed their wishes only saying that everything will be shared equally.

no the daughter did not provide any care. Mother did have carers towards the end which she funded from her pension.

But it won't be an equal distribution if it is going to be based on the loan rather the value of their share of the property. You need separate legal advice. This could get very expensive and very messy especially if a challenge was taken the whole way. 

As I understand it whether it is based on the loan being repaid or 40% of the current value of the property it will be split equally between the three siblings.
Yes we are seeking professional legal advice.
I understand this has the potential to be very complex and therefore expensive.

sharpe106

Who instructed the original solicitors was it the parents or the daughter?

getmore4less

Based on what said 

The DOT says the parents own 40% then that is an asset of the estate.
Should be dealt with as per the will(50:50?)

I the DOT does not mention the loan being written off then that remains a separate agreement.
Don't forget there is a PET on the Sisters estate for that gift (probably not a GWR as parents lived there). 

Unless the parents will gives sis a life interest or there are word that she gets the property if she pays back the loan then  she needs to cough up 20% to you if she wants to keep the property..

The loan is a separate agreement but as there are no terms probably unenforceable.
If agreed there was a loan it will  still a debt to the estate that cannot be called in.(the terms in the will about the loan are really only reference, you can't add terms like payable on death of the lender in a will to an existing loan agreement.

Sis is trying to diddle you.

dacdac

sharpe106 said:

Who instructed the original solicitors was it the parents or the daughter?

Not sure exactly but think it was the parents as they also had wills drawn up.

doodling

Hi,

This needs advice from a solicitor who has seen the documents but it all seems pretty clear except for a couple of areas.

One area of uncertainty is whether the DoT defines a fixed percentage split between the parents and their daughter.  It sounds like it does - is that correct?  To be clear, any reference to a loan in the DoT is all about money owed and not something which changes the ownership split?

If the DoT defines a fixed ownership split then the portion owned by the parents will form part of their estate and any mention of a loan is a red herring in that regard.

The other area of uncertainty is the loan.  There appears to be evidence ce that one exists but the terms appear to be very unclear and that will make it difficult to call in - if there is clear evidence of it then the daughter needs to repay the loan, irrespective of the ownership split identified in the DoT.

It seems to me to be a high risk strategy for the daughter to argue the loan exists if the DoT also has a fixed percentage split - the daughter could end up providing the evidence that the loan exists and must be repaid whilst not also invalidating a fixed ownership percentage split.

Finally, the wording of the DoT you paraphrase is awful - having a "whichever is later" clause means everyone is guessing whether something else is going to happen in the future - does it really say that?

dacdac

doodling said:

Hi,

This needs advice from a solicitor who has seen the documents but it all seems pretty clear except for a couple of areas.

One area of uncertainty is whether the DoT defines a fixed percentage split between the parents and their daughter.  It sounds like it does - is that correct?  To be clear, any reference to a loan in the DoT is all about money owed and not something which changes the ownership split?

If the DoT defines a fixed ownership split then the portion owned by the parents will form part of their estate and any mention of a loan is a red herring in that regard.

The other area of uncertainty is the loan.  There appears to be evidence ce that one exists but the terms appear to be very unclear and that will make it difficult to call in - if there is clear evidence of it then the daughter needs to repay the loan, irrespective of the ownership split identified in the DoT.

It seems to me to be a high risk strategy for the daughter to argue the loan exists if the DoT also has a fixed percentage split - the daughter could end up providing the evidence that the loan exists and must be repaid whilst not also invalidating a fixed ownership percentage split.

Finally, the wording of the DoT you paraphrase is awful - having a "whichever is later" clause means everyone is guessing whether something else is going to happen in the future - does it really say that?

Yes DOT specifies the property is held in trust for themselves as tenants in common in unequal shares of 60% to daughter and 40% to the parents.
The 40% represents the value of the loan against the initial purchase price. So I take the view that the loan was repaid when the DOT was created .
The probate solicitor handling the fathers estate has added it into the draft estate account as 40% of the purchase price (which is the same value as the loan) rather than acknowledging what is in the DOT which is 40% of property sale value less outstanding mortgage and sales expenses.
I am not sure what represents clear evidence of a loan. All I see is a reference in the DOT which says upon purchase of the property daughter was loaned £x to assist with the purchase of the property. Also there is a reference in the mirrored wills which says I declare that a loan of £X was made to daughter and shall be brought into account by my said daughter. Daughter has verbally said that there was no loan agreement and that the DOT was created to protect the parents in case her marriage broke up.

yes in the DOT in the part where it lists when the parents interest in the property will be realised, one of the terms states “ the death of Mr and Mrs  X whichever is the later.