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Legal matters

Mumsnet has not checked the qualifications of anyone posting here. If you have any legal concerns we suggest you consult a solicitor.

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Original poster

Solicitor mistake 14 years ago

13 replies

NotPennysBoat · 06/10/2023 13:49

Sorry this is long but I want to get all the facts out...

14 years ago, DH, DMum and I bought a house together. We completed the paperwork via our solicitor to be listed as Tenants In Common, which my mum was very insistent about (we were newlyweds and maybe she was more cynical with life experience). We were all happy with this arrangement and lived together in the house until my mum died earlier this year.

Now we are going through paperwork etc for inheritance tax/probate and my (different) solicitor has highlighted that the house was actually registered as Joint Tenants. This obviously has huge implications because instead of her share passing just to me (only child), it is split between me & DH.

Now DH and I are still very happily married, but I am so upset about this because it's not what my mum wanted.

I have been in touch with the original conveyancing solicitor to ask them how this can be rectified, but they have basically said that they have destroyed all the paperwork as it's 14 years ago (I have my own copies), and that I should take independent legal advice if I want to pursue it further.

I really don't know what to do!! Do I have a leg to stand on here?? Will it make any difference now or is it too late? Would welcome any insight or advice, thanks in advance 🫶🏼

OP posts:

Snowontheroof · 06/10/2023 13:53

If everyone is in agreement you can have a deed of variation. https://www.gov.uk/alter-a-will-after-a-death

Change a will after a death

Changing an inheritance after death (a 'variation') and how it can affect amounts of Inheritance and Capital Gains tax due

https://www.gov.uk/alter-a-will-after-a-death

Collaborate · 06/10/2023 13:57

If you have evidence that the registration at HMLR was incorrect then they may be persuaded to alter it.

However as you are happily married why don't you just declare a tenancy in common with your husband, with you holding two-thirds?

YouDoYouHun · 06/10/2023 13:59

Tenancy can be severed retrospectively and deed if variation to alter the will if that's needed as pp has said. You need legal advice on this tho as it depends what you're wanting to achieve, who executors are and who the beneficiaries are and if everyone is on the same page.

FunnysInLaJardin · 06/10/2023 14:03

Collaborate · 06/10/2023 13:57

If you have evidence that the registration at HMLR was incorrect then they may be persuaded to alter it.

However as you are happily married why don't you just declare a tenancy in common with your husband, with you holding two-thirds?

This would be the easiest route if you are still happily married

Justcallmebebes · 06/10/2023 14:05

First Post is right - a Deed of variation will rectify this

YukoandHiro · 06/10/2023 14:15

Snowontheroof · 06/10/2023 13:53

If everyone is in agreement you can have a deed of variation. https://www.gov.uk/alter-a-will-after-a-death

Recommend this approach. DH used it when he legally became sole inheritor of a relative because they had failed to write a will and died very suddenly. He wanted to share with other remaining direct relatives so used a deed of variation.

bonzaitree · 06/10/2023 14:26

Your solicitor is right- get independent legal advice

cupofdecaf · 06/10/2023 14:29

You understand though that if you were to split up what's technically yours and his won't necessarily result in exactly that split?
A deed of variation would allow you to leave your 2/3 in your will but it could still be a marital asset in a divorce.

titchy · 06/10/2023 14:45

How much in £ was your dm's share of the house? It could have been a very fortunate mistake if it has meant her estate doesn't need IHT paying.

But yes just sever the tenancy with your dh now.

Mumof3confused · 07/10/2023 16:37

If you separate, the family home will be seen as a joint asset regardless of what the deeds say. You could perhaps explore whether a post-nup would protect your position but they’re not always taken into account.

Original poster

NotPennysBoat · 08/10/2023 20:59

Thank you so much for all of the responses! If I decide to pursue then of course I will take proper legal advice, I'm just at this stage trying to work out if it's worth it (the hassle, the ££ and the conversation with my DH!).

Are PP saying that if we ever divorced, it wouldn't make any difference anyway? Whether the house deeds say our shares are 50/50 or 66/33, it would be split down the middle either way?

OP posts:

titchy · 08/10/2023 21:54

If you divorce all assets are up for negotiation regardless of who owns it.

I'm struggling to see what your financial loss is - you can sever the tenancy in favour of a split you'd prefer for free.

VineRipened · 08/10/2023 23:00

In the case of divorce the whole spread Id asserts you each have would be taken into account, yes

However there are advantages to owning as Tenants In Common. As a PP said it means you can leave your share directly to your Dc, or anyone else, whereas as a property owned as Joint Tenants automatically passes to the other owner(s).

This ensures that the assets of a deceased parent do not end up as the property of a step parent. I know so many men who after the loss of their wife quickly marry someone new. Typically younger, so the new wife outlived and inherits everything from him. I have friends whose mother’s property ended up being left to the children of the new wife, and nothing to them.

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