Will being contested!

jimmymacd

My neighbour is going through a messy period as his long term partner died suddenly last year and left a Will leaving everything to her estranged Daughter including the house. The deeds to the house are in his name and although he hasn't always contributed to the mortgage he has paid into it when possible. Although he has a Solicitor acting for him he is still coming to me for advice, which is fine but I don't practise law and haven't been involved in Law for decades. My question is, can a non marital partner include property or effects in a Will when they are not named in the Deeds though she was named on the mortgage deposit?

Keep_pedalling

If the house is in his name then it does not form part of his partner’s estate and there is nothing to contest.

Grumpelstiltskin

Just to check, which country is this, the law in Scotland is different to England and Wales?

Mind you I would agree with KP you can't will something you don't own.

Flugelhorn

Agree need to check which country and also worth checking what is actually on the land registry - just to be sure

Marcon

jimmymacd said:

My neighbour is going through a messy period as his long term partner died suddenly last year and left a Will leaving everything to her estranged Daughter including the house. The deeds to the house are in his name and although he hasn't always contributed to the mortgage he has paid into it when possible. Although he has a Solicitor acting for him he is still coming to me for advice, which is fine but I don't practise law and haven't been involved in Law for decades. My question is, can a non marital partner include property or effects in a Will when they are not named in the Deeds though she was named on the mortgage deposit?

The confident assertions on this thread are not necessarily correct - you don't have to have your name on the deeds to have a financial interest in a property eg https://www.churchers.co.uk/churchers-news/what-are-your-rights-if-your-name-is-not-on-the-deeds/ so if the daughter contests, there is no guarantee that she wouldn't be awarded a share of the value of any sale proceeds (whether or not the property is actually sold).

Instead of posting here (albeit with the best of intentions), why don't you point out kindly and firmly to your neighbour that you are in no position to answer his questions and his solicitor is the best reference point? It sounds as if his solicitor may have pointed out what I've said in my previous paragraph and he's hoping (we've all been there!) for a different answer he prefers.

polar_pig

The fact that the deeds are in his name will be a major factor to determine how the property was owned. The onus is then on any claimant to prove that he does NOT own 100% of the property. However there may be other factors that might influence whether the mother had a financial interest in the property and how much that might be. This potentially comes under the 'Trusts of Land and Appointment of Trustees Act 1996' (TOLATA).

If it can be proven that there was an agreement, arrangement or understanding between the parties  that she was to have a financial interest in the property (difficult if she is dead unless there is documentation to the effect) then there might be a legitimate claim.

Alternatively, if it can be proven that she has financially contributed to the property i.e. the purchasing deposit, the mortgage or major renovations/extension there might be a legitimate claim. 

A third possibility for a claim might be if he gave her a promise that she relied upon to her detriment (eg. that she would eventually own (or partially own) the house and because of this she sold a property in her name or didn't buy a property and as a result financially lost out.)

The above grounds are called 'constructive trust', 'resulting trust' or 'proprietary estoppel'.

Any such claims can be quite complex legally, difficult to prove and expensive to bring to court if contested.

I suggest he tries to find answers to:

What agreements were made about the financial interests to the property?
Who paid what contribution to the house deposit, mortgage and renovations?
Were any promises made regarding the ownership of the house? 
Why did the mother state that the house went to her daughter in her will? Was it the same house or one she had previously owned?

If the will really is being contested, I suggest he then needs to take these answers to a legal professional and get some good advice. As the deeds are solely in his name, as stated previously, the onus is on the claimant to 'prove' their case. 

Keep_pedalling

What ever the situation is with beneficial ownership, none of this can be covered by the will being contested. On the face of it the daughter has not been left out of the will but one of the bequests fails because the deceased did not own the home. 

She may well be going to court to get an establish an ownership claim but this is a property dispute rather than a challenge on the terms of the will. 

jimmymacd

Thank you everyone for your input, this was really an "out of interest" question as to whether a person can bequeath something they don't technically own? This will come under English law and my Neighbour does have legal representation. When his partner died the Daughter marched in and took everything that wasn't nailed down, even took their car so he was left in a rural area with no public transport! I have since lent him my car until he can get things sorted. It is a very messy and acrimonious situation, the Daughter apparently has a lot of money and this is just to make a point as she was never happy with her Mothers choice of partner? She has even hired a Barrister which seems a bit of overkill? I have constantly said I am not qualified to offer legal advice but I think he just needs someone in his camp?

Grumpelstiltskin

Was probate applied for, if so who applied?  You can check here.

Search probate records for documents and wills (England and Wales) - GOV.UK (www.gov.uk)

Spendless

My understanding - which may be completely wrong  -  if you are named on the mortgage but not the house deeds then a mortgage company could come after you for the money should the payments default but they would be chasing you for a property you don't actually own. I'm pretty sure I've read articles suggesting you don't do this for this very reason. Why the deceased partner put themselves in that position I don't know - you'd think legal advice would have been sought at the time. If I'm correct in what I'm saying then I suspect the estranged daughter won't succeed.

Just to clarify though you are using the term partner - were they married or civil partners rather than boyfriend-girlfriend (for want of a better word) Checking cos I once came across someone referring to their spouse as partner and that changed the answer to their particular question! 

Flugelhorn

jimmymacd said:

Thank you everyone for your input, this was really an "out of interest" question as to whether a person can bequeath something they don't technically own? This will come under English law and my Neighbour does have legal representation. When his partner died the Daughter marched in and took everything that wasn't nailed down, even took their car so he was left in a rural area with no public transport! I have since lent him my car until he can get things sorted. It is a very messy and acrimonious situation, the Daughter apparently has a lot of money and this is just to make a point as she was never happy with her Mothers choice of partner? She has even hired a Barrister which seems a bit of overkill? I have constantly said I am not qualified to offer legal advice but I think he just needs someone in his camp?

Daughter sounds like a right one.  Neighbour definitely needs a good friend on their side at the very least. 
Suspect the daughter has been told that the mother couldn't leave something she didn't own and hence the strop that followed