I have a situation where H and W own as T in C. W has died. H has lost capacity and I am his deputy.
I have a C of P order under sec 54 Trustee Act which states that H does not have capacity to act as trustee and which appoints me and M (who happens to be W’s executor) as trustees in place of H.
I am completely happy with all of this - sale by 2 trustees and overreaching of beneficial interests. Job done.
However… we have sold the property and the buyer’s solicitor does not believe that overreaching is going to happen and is asking for a court order authorising sale, a copy of the grant in W’s estate and a copy of her Will. We have quoted the Land Registration Act until we are blue in the face, sent copies of Practical Law on the subject and they just won’t budge.
We are at the stage where the only way this matter is going to progress is for the buyer to change solicitors but quite understandably she wants to believe her solicitors are correct. Our word is clearly not enough.
Is there anyone who can reply to this (and who wouldn’t mind me forwarding the email) confirming that overreaching will occur and the buyer’s solicitors will get good title for their client with what we have supplied?
Thank you in advance
Caroline Brooks-Johnson
Inheritance Law
The solicitor acting for the buyer should know better BUT a way round the problem may simply be to transfer the property (i.e at the land registry)to the new Trustees who can then sell.
I appreciate that such transfer should not be necessary but it should remove the issue.
Stephen McNally
Hartlaw Llp
I had a similar situation and we had to approach the C of P for a third trustee to be appointed. Their own guidance notes are ambiguous. It says to apply under section 54 but then goes onto say that unless the executors of the deceased’s estate have been put on the title to the property they cannot legally deal with its transfer or sale and are not trustees of the property. When you made the initial application for the order under section 54 did you deal with a specific person from the Treasury Solicitor - could you approach them for assistance? We had to apply under section 36 (9). even though we had an incapable wife and a dead husband. My clients were joint deputies for the wife and executors for the husband but the Court said we needed a third person for overreaching to take place.
Claire Flood
CLAIRE FLOOD SOLICITORS