Free Advice Column - 25/02/2009
25 Feb 2009
Still chance of a will
Q. My sister suffers from memory loss and is a ward of court, with social services and lawyers to control her affairs. She lives alone in the property I gave her a few years ago, before she became ill. She always intended making a will leaving a share of the house to me and the rest to charity. But as things stand everything will go to cousins she doesn't like and never sees. Is it still possible for her to make a will?
A. If your sister dies first, everything would go to you under the intestacy rules, but obviously it would be advisable for her to make a will in the event that she survives you. If your sister is still living in her own home it suggests she may have sufficient mental capacity to make a will: people suffering from memory loss often have lucid moments. The solicitor drawing up the will would test her capacity. If necessary you should ask about applying to the Court of Protection for a statutory will to be executed, although this can be complicated. It would be handy to have proof that you gave your sister the house in the first place.
Rent arrears
Q. A neighbour collects our ground rent each November, but for the past three years he has failed to do so. He says he has had no notification from the landowner to make the collection, and can't do anything until asked to do so. I have heard that unless a leaseholder has receipts for ground rent paid he cannot sell his house. Is this correct?
A. No, although it may cause some delay. Generally speaking it should be possible to simply knock off the amount of ground rent owing (up to a maximum of six years' worth) from the price you agree to sell your house for. The rent “goes with the property”, so the new owner of the house would otherwise be liable for the amount unpaid even if he or she wasn't living there at the time. These days your neighbour can refuse to make such collections by sending notification to the landlord.
Clearing a blockage
Q. The sewage chamber in my garden serves five houses. When it gets blocked, I have to call out a drain clearance firm to unblock it, and they send me a bill. Is there any way I can get them to bill the others separately? Three of the others always pay their share, but one never does.
A. The drain clearance firm has no contract with the other people who are also responsible for the upkeep of the drain, so it won't split the bill among you. You could ask the council to clear the sewer on the grounds that it represents a health hazard. If they agree, they will serve a notice under the Building Act on the five households responsible for maintaining the sewer. They could then clear it and would be able to send out separate bills. Your title deeds should show an obligation on the part of the other five householders to share the maintenance costs. You should consider suing the one who never pays in the small claims court.
Will contest
Q. Is it still possible to contest a will successfully, and without enormous expense?
A. Anyone who believes they've been wrongfully deprived of benefit in a will can dispute it on the ground that the testator (will-maker) was unfit to write it, or was unduly influenced by someone else. The executor's interpretation of the will can also be challenged, as can the document itself on suspicion of a forgery or forged signature. But probably the most common ground for disputing a will is the testator's failure to make reasonable provision for someone who could have been expected to be provided for. This is sometimes possible under the family provision legislation, but you would need a solicitor's help. If agreement can be reached with the executor it may not be necessary to go to court, but going to court can be expensive.
Q. My sister suffers from memory loss and is a ward of court, with social services and lawyers to control her affairs. She lives alone in the property I gave her a few years ago, before she became ill. She always intended making a will leaving a share of the house to me and the rest to charity. But as things stand everything will go to cousins she doesn't like and never sees. Is it still possible for her to make a will?
A. If your sister dies first, everything would go to you under the intestacy rules, but obviously it would be advisable for her to make a will in the event that she survives you. If your sister is still living in her own home it suggests she may have sufficient mental capacity to make a will: people suffering from memory loss often have lucid moments. The solicitor drawing up the will would test her capacity. If necessary you should ask about applying to the Court of Protection for a statutory will to be executed, although this can be complicated. It would be handy to have proof that you gave your sister the house in the first place.
Hand me the house
Q. I'm a single parent with a residence order for my daughter. My ex-partner refuses to pay any maintenance and she hasn't contributed to the mortgage for nine years. However she won't sign the house over to me unless I give her some money. How can I get her name off the mortgage?
A. You should really have sorted this out when she left. If your ex-partner's name is on the title deeds it's usually assumed that any equity in the property will be divided fifty-fifty, unless there's an agreement to the contrary. If your ex-partner is pressing for her share it's possible a court will allow you to remain in the house until your daughter is older, or in some circumstances it could order that the equity is divided in different shares. This being the case you may be able to negotiate to buy out your ex-partner's interest in the house at a discount. Why not contact the CSA for maintenance for your daughter?
Rent arrears
Q. A neighbour collects our ground rent each November, but for the past three years he has failed to do so. He says he has had no notification from the landowner to make the collection, and can't do anything until asked to do so. I have heard that unless a leaseholder has receipts for ground rent paid he cannot sell his house. Is this correct?
A. No, although it may cause some delay. Generally speaking it should be possible to simply knock off the amount of ground rent owing (up to a maximum of six years' worth) from the price you agree to sell your house for. The rent “goes with the property”, so the new owner of the house would otherwise be liable for the amount unpaid even if he or she wasn't living there at the time. These days your neighbour can refuse to make such collections by sending notification to the landlord.
Clearing a blockage
Q. The sewage chamber in my garden serves five houses. When it gets blocked, I have to call out a drain clearance firm to unblock it, and they send me a bill. Is there any way I can get them to bill the others separately? Three of the others always pay their share, but one never does.
A. The drain clearance firm has no contract with the other people who are also responsible for the upkeep of the drain, so it won't split the bill among you. You could ask the council to clear the sewer on the grounds that it represents a health hazard. If they agree, they will serve a notice under the Building Act on the five households responsible for maintaining the sewer. They could then clear it and would be able to send out separate bills. Your title deeds should show an obligation on the part of the other five householders to share the maintenance costs. You should consider suing the one who never pays in the small claims court.
Will contest
Q. Is it still possible to contest a will successfully, and without enormous expense?
A. Anyone who believes they've been wrongfully deprived of benefit in a will can dispute it on the ground that the testator (will-maker) was unfit to write it, or was unduly influenced by someone else. The executor's interpretation of the will can also be challenged, as can the document itself on suspicion of a forgery or forged signature. But probably the most common ground for disputing a will is the testator's failure to make reasonable provision for someone who could have been expected to be provided for. This is sometimes possible under the family provision legislation, but you would need a solicitor's help. If agreement can be reached with the executor it may not be necessary to go to court, but going to court can be expensive.
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