Mortgage Entered into Without Consent

My clients’ mother was not married to their father, and, therefore, did not inherit on his intestacy. She obtained probate in 1998 for the use and benefit of the two children until one of them attained 18. They have both now reached 18. The property is still in the name of the deceased. The mother appears to have taken out a mortgage in 2012. My clients have no information about this other than what is shown in on the Land Registry title deeds. My clients will shortly apply for a grant in their own names.

Three questions arise:

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Is there anything they can do to obtain information about the mortgage before obtaining a grant themselves;

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Will they be bound by the mortgage; and

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If so, what can they do to get the mortgage cancelled.

I note my clients do not wish to apply for an order that their mother give an account of the administrarion as she is not mentally well and they do not wish to cause her distress, and they say she will not be able to remember anything.

Whatever the legal niceties may be, there is unlikely to be any redress open to the children for any loss they may consider they have suffered other than by way of action against their mother. It would be a surprise to me if the mortgagee has done or omitted to do anything which would make the loan irrecoverable, unless it is an unregistered moneylender. What has mother done with the money? If she’s spent it then it’s gone. If she’s acquired assets are her kids really going to send her a letter before action? Apparently not. Not every wrong has a legal remedy.

Jack Harper

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Thanks, Jack. That makes a lot of sense, which is unfortunate for my clients. Do you think their position becomes even more untenable by trabsferring the property into their names?

If the clients do not wish to cause their mother any distress, I am not sure what they can do to obtain information. The mortgagee will, in all likelihood, cite GDPR as a reason not to provide any information without the mother’s consent.

Based on what we are told, I am note sure of the grounds the mother could have used to raise the mortgage, mindful that she was the personal representative of the deceased owner and not the owner herself. If the clients allege that the mortgage should not have been granted, would they be alleging their mother had mislead the mortgagee, thereby raising the spectre of “fraud”, which could result in a demand for immediate repayment and, perhaps, lead to litigation to prevent a sale of the property by a receiver for the mortgagee. This would seem to me to be likely to cause greater upset to the mother.

In short, it seems to me that the choice is either to accept the situation, or to accept that they may cause the mother upset in trying to get to the bottom of the situation.

Mindful that the mortgage was taken out some 14 years after the death of the clients’ father, were they aware of any work being undertaken to the house around that time? If so, perhaps the mortgage was raised to pay for that work, or maybe to buy out the freehold (clutching at straws!)

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

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It’s been a while since I’ve dealt with Land Registry matters so forgive me if I’m barking up the wrong tree but I wonder if you can get a copy of the charge from the Land Registry historical documents at some point, to see the signatures and witness to it, which may generate some clues as to what’s gone on here.

Kind regards


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That’s a great suggestion, Jane. I will definitely do that.

Hi Paul,

That all makes a lot of sense. At the moment, I have so little information, and I will have to check with my clients how they wish to proceed taking into account their desire to protect their mother.

Many thanks,
The Legal Beagle