Thanks for your question. Please kindly RATE my answer when you are satisfied
Has the deed now been witnesed or are you being asked to witness a deed that has already been signed please?
have just found out my father "gifted" a property to a friend 10 years ago (my father died 3 weeks ago) the deed was witnessed but the witness says my father did not sign it in front of him - it was already signed (although my father was in the room when the witness signed) - I want to challenge the validity of the deed of transfer
Thanks. Is the witness prepared to swear an affidavit to this effect?
Thanks. The Law of Property (Miscellaneous Provisions) Act 1989 s1 (3) provides:An instrument is validly executed as a deed by an individual if, and only if—(a)it is signed—(i)by him in the presence of a witness who attests the signature; or(ii)at his direction and in his presence and the presence of two witnesses who each attest the signature; and(b)it is delivered as a deed by him or a person authorised to do so on his behalf.
If a deed is not signed in the presence of a witness then it is not a validly executed deed. It may still be a contract however for a contract to be valid there would need to be consideration - something given in return for the property - which presumably as a gift is not the case here.
If you can produce evidence as above there may be a basis for a challenge.
Is there anything above I can clarify for you?
difficult I know but could you give me an idea of success should I challenge it? this "friend" has also drawn up my father's will, is the SOLE executor and the main beneficiary - not illegal I know but very morally wrong - my father was in his late 70's when he gifted the property and subsequently has had strokes and was unable to read - I do know, however if would cost a fortune to challenge on "sound mind" basis
The difficulty with challenging the gift is the time that has elapsed. You may have to overcome arguments that you failed to act until now by the recipient. However if you did not know until now then this is a defence to this argument. The other question is showing that the witness evidence is correct. He has signed to say he witnessed the signing. He is now saying that is not the case. He will have to convince the court that this is correct and his memory is correct after so long.
Challenging the will may be simpler...
In terms of contesting the will based on what you say you would quite possibly have a case and much would turn on the quality of evidence of capacity of your father at the time he appears to have signed a new will. Principally you could argue possible lack of testamentary capacity at the time your father signed the will or undue influence by his friend.
Undue influence is a challenging case to establish because it must be proven and which involves the need to establish coercion. A recent description by Ward LJ in the Court of Appeal explains how Courts should view such claims :-“In all cases of undue influence the critical question is whether or not the persuasion or the advice, in other words, the influence, has invaded the free volition of the donor to accept or reject the persuasion or advice or withstand influence. The donor may be led but she must not be driven and her Will must be the offspring of her own volition, not a record of someone else. There is no undue influence unless the donor if she were free and informed could say “this is not my wish but I must do it”.
Undue influence will not be presumed and must be proven by the person alleging it has occurred. Establishing that the facts imply undue influence is insufficient. The facts must be shown to be inconsistent with any other conclusion. This can be quite a high hurdle.
For this reason you may wish to consider the alternative. The alternative is that as above you could pursue the matter on the grounds of a lack of testamentary capacity on the part of your father when he made the will. This can be easier to prove than undue influence particularly as there was a significant case of Gill v RSPCA which was a case involving a lady who left everything to the RSPCA disinheriting her daughter.
The Court of Appeal found against the Will because Mrs Gill lacked knowledge and approval of its contents. The Court of Appeal found that lack of knowledge and approval had been established, there was no need to consider the issue of undue influence.
There may also be a claim under the Inheritance Act if you could demonstrate that you were financially dependent on your father at the time of his death but from what you say this may not apply here. If it did you would need to issue a claim within 6 months of grant of probate.
Given the above case it is certainly worth looking at challenging the will. The courts will readily look at cases where children have been disinherited. Costs can be looked to be claimed against his estate
Is there anything above I can clarify for you any further?
no thankyou very much
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