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

getmore4less

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 .

If the DOD trust does not mention the loan then that stays independent and outstanding

The 40% is a gift if there is no consideration.
Even if the loan was written off as this was later, value higher  there could still be a gift element.

This would seem to be born out by the will as this still identifies the loan as existing.

getmore4less

dacdac said:

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.

They have ignored the 40% beneficial interest in the property that forms part of the estate.

Could be trying to cover their buts as they have created this uncertainty.

It's obviously in sis best interest but that's not what the DOT says.

dacdac

Latest update is that after discussing with several solicitors we have selected one to look into the documentation and provide advice and options. We are waiting to hear back from the solicitors who drew up the will and DOT.

one question I have is if a probate solicitor is appointed to deal with the Mothers estate, is it not their responsibility to try to investigate the legal validity of the DOT and will to determine who owes what to the estate? Even if this requires specialist legal advice and all the additional costs that come with that.

Boat_to_Bolivia

@dacdac thanks for the update.
I would have thought so re. the probate solicitor, but I'm no expert.

Please keep us posted.

dacdac

Progress has been slow but we are now in discussion to agree a compromise agreement that will see the Daughter repay the original loan plus an additional sum in return for agreeing that she has 100% ownership of property. The other siblings are happy with this concept as they feel that they cannot progress the DOT without incurring a large legal costs.

The Daughter is planning to remortgage the property to fund this repayment. As the will states that everything is split equally between the three siblings, the daughter believes that she only has to fund 2/3 of the repayment as her share will remain invested in the property. I fear that technically she will need repay the full amount and then receive her third when the estate is settled. Is this correct? The problem is that we don’t think she can remortgage for the full amount so this leaves us back in the position where we are waiting for her to sell the property to fund the repayment, which could be in 30 years. Any creative ideas as to how to overcome this?

Communication remains difficult and we plan to engage a probate solicitor but have not done so yet as she wants to agree an outline compromise plan before we do so.