Q. My mother left the family home to her three children, but my sister refuses to sell. She has been living in the house since my mother died five years ago and will not budge. She says that she is entitled to do this because she is Executor and my mother’s solicitor, who dealt with the Probate, has stopped taking our calls. Is there any way we can force him to deal with the matter? It doesn’t seem right to me, and quite frankly we could do with the money. What can we do?
A. This sounds to me like what I call a toxic case. I say this because the most probable reason why the solicitor will not take your calls is that your sister instructed him not to do so. Your sister is his client and his responsibility is to her. I do not know what advice he is giving her, but I can tell you that you have the law on your side and your sister is wrong when she says that she s entitled to live in the house because she is Executor. However, being Executor does mean that she is the person entitled to sell the house.
Having rights is one thing. Enforcing them is quite another and there are two legal routes which you can take in order to get the house sold. One is to apply to Court for an Order removing your sister as Executor and appointing someone else in her place. The other is to apply to Court for an Order for the sale of the property and appointing someone else to sign the necessary documents if she refuses. Both of these are simple applications, but could end up very costly if your sister contests them.
You could also just sue her for the cash equivalent of your share of the house.
There is a pattern to these cases and the party with deepest pockets and strongest nerves tends to win in the medium term. The fact that you have waited five years to seek advice suggests to me that your sister is just such a party. I mentioned at the start that I considered this a toxic case and it will be exacerbated with litigation. It is also a case in which Mediation is likely to be a better option if your sister will agree. You can find a list of Mediators here.
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