altering a legal document ( property deed ) without the consent of an incompetant

irishh_bob

hi there

not sure if anyone can answer my question , its a tad complicated

an aunt and cousin of mine have a problem in relation to a property deed which was drawn up five years ago , at that time my aunt transfered her house and farm ( small holding ) to her eldest son , the solicitor who drew up the document was a bit of a do - gooder and installed a right to residence for my aunt and her second son who is not fully right , he has whats called aquired brain injury , the eldest son now owns the farm and house but is obliged to support his mother ( my aunt ) and his special needs brother from the proceeds of the farm , no problem with that but a situation has since arose where the eldest son would like to sell a site on the farm to his sister ( my aunts daughter ) as she would like to move closer to home due to the fact that she is getting married but due to the nature of the legal deed , the ( NEW ) family solicitor believes that no changes of any kind can be made to any of the holding unless the mentally incompetant member of the family consensts and by this the solicitor implied , unless a doctor deems him competant to understand what is being proposed , my cousin wishes to sell an acre out of a total of fifty acres but according to the solicitor , not a square yard of the holding can be sold without aprooval by a medic with respect of the younger sons mental capacity , obviously , the legal document which was drawn up was a lousy and extremley restrictive one but my question is this , none of the local doctors are willing to give an opinion on the matter for the simple reason that they are under no obligation to and the whole mess has caused a lot of anguish for my extended family

is the solicitor being overly orthodox and cautious or is thier anyway round this pickle


thanks

Don Quixote de la Mancha

The transfer was done to protect the interests of the mentally impaired person. His interests would not be best served by allowing this to happen. Usually a transfer with a right of residence support and maintenance will not affect the whole farm. The last one I did it only included the house, and farmyard to avoid this situation happening.


As a solicitor I wouldn’t be keen on transferring the site if what you say is the case. I’m not saying it can’t be done but for PI reasons it would be hard to do it.
Get the advices of another solicitor.

irishh_bob

Don Quixote de la Mancha wrote: »

The transfer was done to protect the interests of the mentally impaired person. His interests would not be best served by allowing this to happen. Usually a transfer with a right of residence support and maintenance will not affect the whole farm. The last one I did it only included the house, and farmyard to avoid this situation happening.


As a solicitor I wouldn’t be keen on transferring the site if what you say is the case. I’m not saying it can’t be done but for PI reasons it would be hard to do it.
Get the advices of another solicitor.

the mentally incompetant person will not be in anyway neglected and thier is already generous provisions in place to cater to his future needs , you contention that his interests would not be served by selling a fraction of the farm appear somewhat subjective if you dont mind me saying , it would indeed have been fine if the document did not incorporate the entire farm but perhaps it is a matter of interpretation as to whether the entire farm must be used to support the special needs member of the family , while perhaps a bit of a gamble , could the solicitor ever suffer any consequence from excluding thier one acre site from the holding , i take your point about how if it was you , you would be uncomfortable with changing anything but would their be any real professional risk on the part of the solicitor

ps , the family did ask the opinion of two other solicitors and both said the same

Don Quixote de la Mancha

The solicitor was asked to do a job by the current occupiers father I presume. This gentleman decided that leaving the life interest with s&m over the whole farm was the best way of dealing with it. I would seriously doubt all avenues where not looked at. Was it gifted or done through a will?

As regards the subjectivity of protecting the person of unsound mind (pousm), any act whcih would endanger or diminish the pousm level of support will not be allowed. it all depends on a number of variables but let just say the farm only had once acre of road frontage, that one acre is maybe worth more than the balance of the lands. is the pousm a ward of court, i assume they maybe if they acquired the injury through some form of accident. Consent of the court could be sought as I doubt the pousm would ever be able to make a decision that a solicitor would be happy with.

irishh_bob

Don Quixote de la Mancha wrote: »

The solicitor was asked to do a job by the current occupiers father I presume. This gentleman decided that leaving the life interest with s&m over the whole farm was the best way of dealing with it. I would seriously doubt all avenues where not looked at. Was it gifted or done through a will?

As regards the subjectivity of protecting the person of unsound mind (pousm), any act whcih would endanger or diminish the pousm level of support will not be allowed. it all depends on a number of variables but let just say the farm only had once acre of road frontage, that one acre is maybe worth more than the balance of the lands. is the pousm a ward of court, i assume they maybe if they acquired the injury through some form of accident. Consent of the court could be sought as I doubt the pousm would ever be able to make a decision that a solicitor would be happy with.

you presume incorrectly on many counts , while my aunt is a widow , her husband left no such direction , my aunt inhereted the farm from her husband and when she was transfering the farm to her eldest son a few years ago , the then ( now desceased ) solicitor who dealt with the case , engaged in an exercise of putting her oar in on a grand scale , no party requested this arrangement , it was simply a case of a solicitor being a do - gooder and imposing thier views on others , two different solicitors who have viewed this document of late have described it as the most restrictive piece of trash they have ever seen , the transaction shackles the entire assett and left an entire family hostage to the mental capacity of an incompetant , my aunt and her eldest son did however sign up to the deal , a case of always read the small print

i still havent got a straight answer to my original question , could a solicitor be found who would - could find a way round this problem ?

amen

ianal but who is the legal guardian of the person with mental incapacity ?
If he is so badly incapacitated surely he needs a guardian and if he doesn't have one then why not have his mother appointed and then let her approve the transfer of the site ?

JBG2011

What both solicitors have done are correct. The persons who have a right of residence and support must sign a release and they must be competent to do so. Only a doctor can state whether they are competent or not.

There's no other proper way around it. The owning son might be able to progress the matter by making an application to court and have a court appointed doctor to determine competence if no local doctor are willing to do it. If the supported family members are deemed to be incompetent it may still be possible to go to court and obtain an order dispensing with the signatures but this would not be straightforward and the court would have to be satisfied that the sale of the site was in the interests of the mother and disabled son.

The original solicitor was not a 'do gooder' by inserting the right of residence and support clause as all s/he was doing was what the law recommends is done in the same situation. In the eyes of the law, if he did not insert the clause, far greater potential damage could be caused.

The above situation is extremely common, particularly in rural Ireland. It is far from a perfect situation but on balance it is designed to protect vulnerable persons. In my experience (and I am in no way suggesting this is the case with you) the son who ended up receiving the farm with the support and residence clause usually wants to have his cake and eat it: he wants the farm but wants to do the bare minimum to support family members and cries bloody murder when a situation like this arises.

irishh_bob

JBG2011 wrote: »

What both solicitors have done are correct. The persons who have a right of residence and support must sign a release and they must be competent to do so. Only a doctor can state whether they are competent or not.

There's no other proper way around it. The owning son might be able to progress the matter by making an application to court and have a court appointed doctor to determine competence if no local doctor are willing to do it. If the supported family members are deemed to be incompetent it may still be possible to go to court and obtain an order dispensing with the signatures but this would not be straightforward and the court would have to be satisfied that the sale of the site was in the interests of the mother and disabled son.

The original solicitor was not a 'do gooder' by inserting the right of residence and support clause as all s/he was doing was what the law recommends is done in the same situation. In the eyes of the law, if he did not insert the clause, far greater potential damage could be caused.

The above situation is extremely common, particularly in rural Ireland. It is far from a perfect situation but on balance it is designed to protect vulnerable persons. In my experience (and I am in no way suggesting this is the case with you) the son who ended up receiving the farm with the support and residence clause usually wants to have his cake and eat it: he wants the farm but wants to do the bare minimum to support family members and cries bloody murder when a situation like this arises.

thank you for your constructive and indepth reply , you mention that it might be possible for my cousin to seek a court application so as a doctors opinion might be sought this way , is it possible to put a time frame on how long an application like this usually takes

cafecolour

I have no legal experience, so I'm likely talking out my arse, but:

Could it be got around in a round about way? For instance: the eldest son and his sister sign a paper saying the acre passes to her on the death of the younger son - and until then she pays rent equivalent to the loss of net income that the acre of farmland would generate? (And perhaps the value of any house she built on the site could be counted as additional 'income' to the farmland)

So nothing is being 'sold' she's simply inheriting it/being gifted it. And she pays rent so that the money being generated to 'support' the farm and the other son doesn't change.

UndercoverSpy

http://www.boards.ie/vbulletin/showthread.php?t=2056211521

Adding your other previous thread on this for completeness

irishh_bob

UndercoverSpy wrote: »

http://www.boards.ie/vbulletin/showthread.php?t=2056211521

Adding your other previous thread on this for completeness

relevant , how ?

Victor

irishh_bob wrote: »

you presume incorrectly on many counts ,

In fairness, limited information was available.

the then ( now desceased ) solicitor who dealt with the case , engaged in an exercise of putting her oar in on a grand scale , no party requested this arrangement , it was simply a case of a solicitor being a do - gooder and imposing thier views on others

No, that solicitor was doing their job of protecting the mother and the injured son.

my aunt and her eldest son did however sign up to the deal , a case of always read the small print

What was the other solicitor, employed by the eldest son doing?

Can the land be sold and the proceeds given to the mother and the injured son?