Is this fraud.

Land_Registry · 28 January 2020 at 9:23AM

A few things to consider here some of which have already been highlighted to some degree

From your posts it seems that the property was registered in their joint names. So on the Father's death the legal ownership, which we register, past to the surviving joint owner, his widow.

We don;t register joint owners as tenants in common but the arrangements you refer to may happen and they relate to the beneficial ownership. They may lead to joint owners registering a form A restriction but they don't have to.

The easiest way to describe the difference between the legal and beneficial ownerships is that the former relates to the land and property, which you cannot split. Each can't have 50% of the bricks & mortar for example.
The beneficial ownership relates to the value of the land and property. So the £s and pence. They can be split 50/50 as you will appreciate.
So it is the beneficial ownership of the Father that the will and arrangement you refer to affects and it is his share of the value in the property that the children appear to have a legal interest in.

Based on the above, and on the assumption that there was no restriction in place to restrict the sole surviving joint owner, you can now see how she may have secured a loan against the property and how she is now in a position to sell.

The key however is in pursuing the childrens' 50% beneficial interest be that with regards the mortgaged value or indeed the purchase monies, should she sell.
Whether you can stop her selling will depend on what you decide to do next and I would strongly recommend that you seek legal advice to understand what your options are, and indeed what she may or may not be able to do challenged or unchallenged.

hazyjo · 28 January 2020 at 10:32AM

Was the will made before or after they married?

hb2 · 28 January 2020 at 12:01PM

hazyjo wrote: »

Was the will made before or after they married?

Good question as the will would have been invalidated when they got married if it was made beforehand (unless there is a clause specifically stating otherwise).

TBagpuss · 28 January 2020 at 1:30PM

IF the house was definitely held as tenants in Common then it may well be that she failed to do her job correctly as executor, as at that time it would have been usual to have a restriction on the title or to have the property put into joint names with the children.

However, it's possible that if the will was made before marriage, that she would have inherited in full on intestacy, and it is also possible, although perhaps less likely, that he transferred the house to her before his death in which case it would not be part of his estate to pass on.

Either way, it merits investigation - I think that if there was no restriction on the title then the mortgage company will still be entitled to recover their full amount, even if this is more than 50% of the value, and any claim that the children will have would be against the step-mother directly.

Short term, it sounds as though you need to stop the sale, if possible, and if not, to apply urgently for a freezing injunction to stop the money being paid over to her until the issue has been resolved.

How much is involved? It has the potential to get very messy and very expensive.

Hotpoint23 · 28 January 2020 at 1:47PM

Thank you all for your help and advice. The will was made long after they married and several months before his death, as he knew that he was going to die within a very short period. The will was made to protect his children and to ensure that they received something from his estate. At the time he died there weren’t really any other assets, just the house, although that was owned outright as he cashed in his life insurance to pay off the mortgage. We aren’t talking huge sums as the property was marketed for less than £200k, but that’s not the point. The children should have received 50% of the value of the property but now there is a charge on it, which has surely got to be fraudulent, as she won’t have told the equity release company that she only owned 50% of the property. If they have to claim any money from the wife, they don’t stand a chance, as she will disappear once she gets the funds.
I have already advised them to seek legal help with this, but Ithink this needs to be done sooner rather than later. Thank you all so much.

xylophone · 28 January 2020 at 7:34PM

the house, although that was owned outright as he cashed in his life insurance to pay off the mortgage.

You are certain that the property was owned as tenants in common by Father and his wife? It appears from the will that Father believed this to be the case - I wonder is this sufficient evidence as the LR Rep says

They may lead to joint owners registering a form A restriction but they don't have to.

Otherwise, what documentation do the siblings have to evidence beneficial ownership?

The siblings need legal advice immediately.

xylophone · 28 January 2020 at 7:48PM

And see

https://www.gov.uk/government/publications/private-trusts-of-land/practice-guide-24-private-trusts-of-land

Hotpoint23 · 28 January 2020 at 8:42PM

It was definitely as tenants in common. The will was drawn up by a solicitor, so you would have thought that it would have been done correctly. What more proof do they need?

She’s actually denying that she has changed her name on the title deed to her maiden name, or that she has borrowed against the house, despite us having it in black and white!

xylophone · 28 January 2020 at 8:54PM

It was definitely as tenants in common. The will was drawn up by a solicitor, so you would have thought that it would have been done correctly. What more proof do they need?

I wonder did the solicitor check that there was a Form A restriction in place at the LR?

She’s actually denying that she has changed her name on the title deed to her maiden name, or that she has borrowed against the house, despite us having it in black and white!

I can't see that she would be prevented from using her maiden name - presumably the LR would have required evidence of her identity if she changed details?

As for borrowing against the house, presumably she provided evidence of her ownership to the lender?

And it appears that she is registered as sole owner with no restriction?

Hotpoint23 · 28 January 2020 at 9:25PM

Changing her name is totally up to her, it’s the fact she denies doing this. The title deed shows her as sole owner but she knows that isn’t the case. I’ve been told that an appointment has been booked with a solicitor, so we’ll have to see what they say. But from what I can gather the family may get nothing out of this, which is just shocking.

Is this fraud.

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