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TexLaw, Attorney
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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Hello, I desperately need advice for my mom. Its all a little

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I desperately need advice for my mom. It's all a little complicated, so please bare with me. She's been separated from my dad since 2002, and moved in with my step-dad in a house in Spain in 2004. The Spanish house is in my step-dad's name only. My childhood home growing up was sold in 2002, and as my mom and dad were still amicable they bought a cafe together which my dad runs by himself and my mom is a silent partner. They are still married to this day. My mom put the remainder of her money into making the Spanish house a home for her and my step-dad. For the past 12 months, my mom and step-dad have being living back in England with my step-dad's parents in order to look after them, closing up their house in Spain. They did this because my step-dad's mother (Peggy) had Alzheimer's and had been rushed into hospital with 24 hours to live in October 2011. My step-dad got the first flight out the next day, and my mom packed up the house and came a week later by car. Other than my mom going back to Spain on her own for a few weeks to check up on the house, the 2 of them have been back in England with Peggy and Albert (my step-dad's dad) since October 2011. Peggy died in July 2012, and Albert has since been diagnosed with cancer and only a short time left to live. Peter (that's my step-dad), has 3 brothers and a sister. All 4 of them , for a long time, have said that both Peggy and Albert should be in a home, in order for this to happen, their house, worth approximately £200,000 would have to be sold to pay for it. My mom and Peter were the only one's preventing this, and swore that as long as they were around, nobody was going into a home, hence, them both shutting up in Spain and moving back to England for over a year now. They have both promised Albert that they will stay with him until the day he dies and he will not go into a home. For personal reasons, Albert decided that he wanted to leave his house in his will to Peter only, and any money to be split between his other 4 children. He did this, and even paid for official documentation from his GP and solicitor to state that he was of complete sound mind so that his other children couldn't contest the will. (The money being left to them is a fraction of the value of the house). Shortly after making the will, Albert decided to go one step further to safe guard Peter, and signed the house over to him there and then. I must stress at this point that all of this was completely Albert's idea and there was no pressure at all from my mom or Peter for him to do anything - the will, signing the house over, everything. The house has been in Peter's name for a couple of months now and he has even paid council tax on it up until April of next year. There is also legal documentation stating that Albert is to live in the house until the day he dies, no matter what happens, including the premature death of Peter, if heaven forbid that were to happen. Peter also has a will, which states that everything he owns, house, money, the lot, goes to my mom, and if he outlives her, then it goes to me, (again with the knowledge that Albert will live in that house no matter who owns it). That's the background story, now comes the problem. Earlier this week, Albert decided to tell his other 4 children about what he has done regarding the house, and to put it bluntly, all hell has broken loose! One of Peter's brothers, Bill, has said that he is giving Peter one day to either sign the house back to Albert, or put a legal document with Land Registry stating that in the event of his death, the house is to go to Albert (if alive) or the 4 siblings if not, or else he will fight for ownership of the house with every penny he has - which is a lot. Bill made it quite clear that he was a very wealthy man. My question is, has Bill got a case? Also, is there another issue with my mom because she is still married to my dad, even though they have been separated for 11 years now, and her and Peter have been living together for 9 years? Plus, because my mom and dad have been separated for so long, and her and Peter have been living together for a long time, does my mom have the rights of a common law wife with, or is that null and void because she is still technically married? I know this is a very long winded question, but I would appreciate if somebody could go into as much detail as possible, answering all the points, time is really of the essence here. Thank you so much in advance,
Hi Rachael,

I want to first start out by saying that we probably need to go back and forth a few times to make sure I cover all your points because I'm not entirely clear on every single question. So let's approach this like a conversation.

The first issue that is easy to deal with is that with your mother. Your mother is not common law married to your step father because she is still married to your father.

The next issue is does Bill have a case. If Albert was of sound mind when he transferred the house to Peter and Alberts will calls for Peter to have the house and for the four other children to split any money left (technically referred to as the "remainder"), then Albert is legally entitled to do this. That being said, if Bill wants to challenge it, there are several ways that he can do that, but presumably he would use an undue influence challenge.

Undue influence exists where a contract has been entered as a result of pressure which falls short of amounting to duress, the party subject to the pressure may have a cause of action in equity to have the contract set aside on the grounds of undue influence. Undue influence operates where there exists a relationship between the parties which has been exploited by one party to gain an unfair advantage. Undue influence is divided into actual undue influence and presumed undue influence. Where a contract is found to be entered into as a result of undue influence, this will render the contract voidable. This will enable the person influenced to have the contract set aside as against a party who subjected the other to such influence. In addition, in some instances the party influenced may be able to have a contract set aside as against a party who was not the person inflicting the influence or pressure.

Actual undue influence, as the name suggests, requires proof that the contract was entered into as a result of actual influence exerted. The claimant must plead and prove the acts which they assert amounted to undue influence.

This may include such acts as threats to end a relationship, continuing to badger the party where they have refused consent until they eventually give in. There is no precise definition of undue influence. Lord Nicholls, in RBS v Etridge described the concept as:

"Undue influence is one of the grounds of relief developed by the courts of equity as a court of conscience. The objective is to ensure that the influence of one person over another is not abused. In everyday life people constantly seek to influence the decisions of others. They seek to persuade those with whom they are dealing to enter into transactions, whether great or small. The law has set limits to the means properly employable for this purpose. The law will investigate the manner in which the intention to enter into the transaction was secured: If the intention was produced by an unacceptable means, the law will not permit the transaction to stand. The means used is regarded as an exercise of improper or 'undue' influence, and hence unacceptable, whenever the consent thus procured ought not fairly to be treated as the expression of a person's free will. It is impossible to be more precise or definitive. The circumstances in which one person acquires influence over another, and the manner in which influence may be exercised, vary too widely to permit of any more specific criterion."

Presumed undue influence

Establishing the presumption

Under class 2a there is no requirement to prove that improper influence was actually exerted. Instead it must be established:

1. There was a relationship which as a matter of law gives rise to a presumption of undue influence

2. The transaction is one which can not readily be explained by the relationship of the parties.

1. Relationships capable of giving rise to an automatic presumption of undue influence are those of a fiduciary nature and include:

Parent: child

Solicitor: Client

Religious advisor: disciple

Doctor: Patient

Trustee: beneficiary

In this case Bill could challenge the transfer of the house based on a presumed undue influence. All that would be required would be testimony form Albert that shows that he was of sound mind. The party accused of exercising undue influence may rebut the presumption by demonstrating that the vulnerable party exercised free will in entering the transaction. This is most commonly established by demonstrating that they were fully aware of the risks involved and had received legal advice before agreeing to the transaction.

If this can be established, which it sounds like it can, then Bill can spend all the money he wants, he can't change the law and the law allows Albert to give his house to Peter.

Finally, does this affect your mom? The short answer is no. Your mom is not legally liable for Peter's actions and since they are not married, her assets are not at risk should there be some sort of judgment against Peter.

I look forward to hearing back from you.

Customer: replied 4 years ago.


You have been very helpful - thank you. Albert has definitely got documentation stating that he is of sound mind and my mom and Peter never had influence over him at all, so hopefully, with what you have said, the law will be on their side. One other issue that I didn't mention before was with regards XXXXX XXXXX cancer diagnosis. He is aware of a 7 cm tumor on his kidney which was discovered by accident a few months ago, he went for further tests but refused to be told the outcome. It is only because of the circumstances that Peter was able to be told by Albert's GP what the diagnosis was. That being that there is secondaries in his lungs and he has only got 6 - 12 months left, that was a few months back. The only people aware of this outside of the medical profession are myself, my mom and Peter. Albert doesn't want to know (other than the tumor on his kidney which he was told about straight away), and none of the other 4 children are aware - again with the exception of their knowledge of the tumor. If Peter's knowledge of Albert's future and illness were to come out, could Bill use this to twist things? Also, I understand my mom cannot be classed as a common law wife, however, is she able to use the term "legally separated" without being divorced, because of the length of time her and my dad have been apart, or would she need some sort of documentation for this?

Thank you, Rachael

Thanks for your reply Rachael.

Even though legally separated, this does not grant her right to remarry. She would need to get a divorce decree to enter into a new marriage with Peter.

As far as Bill being able to twist the storey around to make it look bad that Peter knew and did not inform anyone else, the answer is that Yes, Bill will likely use this. It does not establish Bill's claim of undue influence though. Albert could instruct his doctors to tell Bill too if Bill cared to ask. In the end, I don't think that Bill trying to use that against Peter in any claim will be worth anything.

Now, you should consider all this carefully as Bill's threat of litigation has other implications. If Bill sues is it worth it for Peter to fight? If Albert left the house to Peter anyway in Albert's will, then Bill could probably avoid some legal fees by just waiting for Albert's will to be enforced by the court after he passes.

Customer: replied 4 years ago.

Thanks again,

Albert's initial will stated that Peter was to get the house and contents, and the other 4 got the money, but now the house isn't in the will because it's already been signed over to Peter. So now another will has been made which just states that any money is to go to the 4, and everything else, ie contents of the house to go to Peter. The house itself isn't mentioned other than in a letter to the 4 children from Albert which explains why he chose to sign it over to Peter whilst he was still alive. This is with the will and to be read at the same time. So really, all I need to know is that because it is already in Peter's name,and he's paying council tax etc, can Bill have it taken off him? I think you've already answered, but just to be sure, with all the points on the table.


Secondly, regarding my mom, I know she cannot legally get married again whilst still technically married to my dad, all I want to know is can she be classed as legally separated from my dad without having any kind of paperwork to state as such, due to the length of time they have been apart?

Thank you, Rachael

Bill can try and sue, but based on the facts you have presented, Bill's claim will fail. Albert is free to dispose of his property as he see's fit. Albert has decided to give his house to Peter. Peter did not exert undue influence and there is evidence to show that. Bill has no rightful claim to the house and would likely lose a lawsuit if he chose to file it.

Legal separation has to be granted by the court, it does not come about by operation of law through the passage of time. In order to achieve legal separation, your mom would have to seek it in court. However, since she has lived separately from your father for more than five years, she can get a divorce without needing the consent of your father.
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