problem with will and deeds of house

[fdunne]

Hope this is not too long, i did search the site and couldn't find anything. My husbands mum died 7 years ago. Before she died she made a will leaving the house to my husband and his brother. When she was pregnant with my husband her husband left her and was never heard from again. My husband never met him, and he never gave any money toward his keep, school, etc. Now the solicitors say that he (husbands father) is entitled to one third share of the house. The solicitors tried to locate him and couldn't. My husband set a registered letter to his last known address (uk), a week later he got a phone call from nursing home in england saying that his father was there, suffered a stroke and has dementia. He is nearly 80. He can't sign anything because he has no understanding of what he would be signing, he has no family at all, no visitor even. How can sombody who disappeared 40 years ago be entitled to anything? This has been going on for so long, and now somebody wants to buy part of the garden and we can't sell. Also we want to take a mortgage out on the house (needs a lot of work) and we can't so that either. Anybody got any advice? Thanks

 

[MOB]

This is a thorny problem; A spouse has a right to claim part of an estate. However, usually if they don't claim their legal rights within specified time limits, that is the end of the matter. In this case, because the spouse lacks mental capacity, it is possibly the case that the time limit would not be deemed to be running against him. However, this should not stop a sale: it just means that one third of the nett sale proceeds should not be taken by your husband and his brother, but should be placed on deposit by the executor for the benefit of the husband. (actually it should be paid over to the husband perhaps, but at a minimum it should be placed on deposit).

If your husband and\or his brother are actually the executors, they have more room for manoeuvre. If the solicitor is executor, there is less room. But either way, there is no technical obstacle to going ahead with a sale. (oops, sorry- one small obstacle: if the house is less than one third of value of the total estate, then the huusband can claim the house itself in satisfaction of his share, in which case you really are bunched)

 

[fdunne]

Thanks for that, will show my husband and his brother your reply. His brother is the executor of the will. I think another appointment with the solicitors is in order. Thanks again

F