Mums Will, failed!

[1452kc]

Husband(H) and Wife(W) walk into a Solicitors(S) to make the W Will, both H and W are present in the same room at the Will writing. W has been unwell for a number of years and will, just a few weeks from now pass away. H and W have lived separate lives for many years, separate beds, separate rooms and if finances would have allowed, separate houses. They have no children, H has no children, W has adult children from a prior relationship. H and W bought a house together over a decade earlier, the house they live in, the bulk of the purchase was made with W money, which included inheritance from W parents and blood relatives. However they own the house 50/50. H is somewhat controlling and abusive.

W tells S she wants to leave her half share in the house to her children, S adds to the Will, i assume after informing W this is what would be needed, that 'there was to be no restriction on the sale of the property' and 'no life interest for the H'. The point of these statements was to ensure the children got the W share in the house upon her death, not decades(?) later when the H dies. The H has significant funds of his own after inheriting his own fathers house.

During this meeting about the Will, the S asks these laypeople(H and W) 'is the house held as JT or TIC', what layperson know the ramifications of that? Anyway, S states in his notes that the(who responded?) response was 'TIC'. As the house is held as TIC what W has put in her Will, ie leave her share in the house to her children, is valid. Anyone can check the Land registry for a few £'s to find out the answer to JT, TIC, why didn't the S or S secretary do so? Why even ask the question? S should confirm with the source(Land Registry). Lazy, negligent, stupid, in on it? The H and S were both male, same age, etc.

Around a week later H walks back into S office and asks 'what if the property is not held at TIC?', S states, ' you will need to discuss that with your W'. S does not contact W. H does not talk to W.

A few weeks later W passes.

Turns out property as documented at the Land Registry is held as JT. Therefore W share passes to H and Will is worthless.

There may be paper work at the property that severed the JT, but that cannot be accessed. H will not allow it.

So the issue is the TIC vs JT. Many argue a course of action can severe a JT without any formal paper work explicitly severing the JT. If you apply for divorce it's likely you don't want to leave your share to your soon to be ex partner. Equally if you make a Will in front of your partner that states you want to leave your share to your kids, not them, surely that severs the JT. It's just common sense. Another point is, both(we will never know) H and W stated the property is held as TIC during the Will writing, that's a mutual agreement right there, a bit like saying 'i do' in the church.

So why does H now own 100% of the house? What a bs legal system. Deliberately grey, it should be a flow chart.

So how do we go back and get JT changed to TIC, so the Will is effective and the children can get their inheritance.

Thanks

Perhaps see whether you can prove negligence on the part of the solicitor?

The husband clearly had an interest in saying it was TIC not JT. I think the solicitor should have made the wife aware that if she was wrong her will was invalid. I would make a complaint about the situation they left her in - with a will which could not be executed.

I'm not an expert but don't believe that you can retrospectively change from JT to TIC now that the W has passed away. As I understand it it would have been a simple process to do while she was alive, and not require any agreement from the joint owner.

When OH and I bought our house together, the difference between and the consequence of being JT compared with TIC was explained to us by the conveyancer, and presumably this is was a decision made by H & W at the time of the original house purchase. .

I suspect that if either party had answered 'JT' or 'I don't know' to the solicitors question at the time of writing the will the solicitor would have asked them to check and explained how it would affect the will.

Sorry that that is not what you want to hear - I suggest you seek legal advice if you haven't done so already.

Are these people your parents?
If the wife is aware that this is what happened, she needs to go back to the solicitor and explain that the property is owned as JT.
Just saying, mistakenly, in front of a solicitor that it’s TIC doesn’t make it so. It’s the Land Registry entry that’s definitive.
The solicitor can apply to the LR to make it TIC. The process took a few weeks for us. But it sounds as though the husband is hoping nothing will be done and the wills will stand as they are.
There seems to be serious conflict between this couple, the husband has clearly been dishonest, and I’m surprised that they went to the solicitor together to make their wills. Coercion?

The husband can’t control what information is given out by the land registry.

in all likelihood it was always held as joint tenants. That it the most common way for married couples to hold property.

otherwise it was changed from tenants in common to joint tenants but that would have required your mums signature and consent

For property held as tenants in common the land registry entry will say “no disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court”

I’m so sorry, I missed that she’s passed away. What a snake he is.

I am sorry this happened OP. The solicitir should have told them/ helped them to check. It is very important.
Everybody reading this needs to check whether they own their property as JT or TIC and read up on the implications. It can be changed but it is a legal process.
Then make a will while you are in good health and sound mind. You can always redo it if necessary.

Re-read the OP. The wife has already passed away.

The OP is presumably one of the wife's children. The H has no children, so is not her father.

This does seem like negligence on the part of the solicitor, but not sure what, if anything, you can do about it. I'm sorry for your loss and for this horrible situation. If the H was half decent, he would respect his wife's wishes regardless of any legal loopholes.

According to the OP the wife has now passed away, so it's too late for her to do anything....

And I'm not sure any complaint of coercion from the H would apply, given that the will made in his presence didn't actually leave anything to him.

Also one could argue that if the wife didn't realise the significance of how the property was held, then why should the husband ?

It can't be changed if one party passes. Only when both are alive to agree and sign.

@MrsBennetsPoorNerves @P00hsticks Yes, I noticed almost straight away and apologised to the OP.

Is H not honouring W's wishes even if there is this mistake?

So sorry OP. There’s little you can do - unless you find a document proving the tic.

This happens often. It’s known as ‘the Lynda Bellingham effect’ . Her snake of a husband did similar (though she didn’t have a tic, she trusted him to do the right thing). People and money.

https://willwritten.com/legacy-advice/lynda-bellinghams-sons-betrayed-as-feared

You don't need the agreement of the other party to sever a joint tenancy and make it held as tenants in common - but you do have to be living.
Joint property ownership: Change from joint tenants to tenants in common - GOV.UK

To be fair the husband has not “done” anything. The property was held as joint tenants not tenants in common. That was their joint decision when the property was purchased. He hasn’t changed that

The surviving JT can sever the joint tenancy to tenancy in common on the death of the first JT if they choose

I think the solicitor is at fault here. We redid our wills last year and put this clause in for both of us. We couldn’t remember how we owned the house as purchased many years ago. So the solicitor checked and changed it for us with our consent. I’d seek independent legal advice from a will specialist I think.

I’d start with a formal complaint against the solicitor. How much money have the children lost out on? Is it possible that the solicitor’s negligence insurance will cover it?

Poor you. I'm assuming you are the dd and your mum has passed. Hope you can get something sorted.

When we redid our wills last year we were advised to switch our property from joint tenants to tenants in common. We were certain how it was specified at the Land Registry but the Solicitor still made us pay for the searches to check before making the changes and completing the paperwork.
I think the Solicitor in your case has been negligent.

I believe the solicitor should have verified how the property was held.

I used to write Wills and Always did a LR search to check ownership, I never took the client's word for it (and quite often they were wrong).

However, whether this amounts to any claim against the Solicitor I don't know. You could get a Solicitor specialising in Contentious Probate give you some initial advice, but be warned, to get to a position of knowing whether you might have any course of action is likely to be expensive.

Solicitor here. It’s such an important distinction between JT and TIC that the solicitor should absolutely have checked.

Yes, S should have checked that the property was held as TIC. However, they're a human being, and calling them "lazy, negligent and stupid" because you're not getting your inheritance quickly enough isn't going to get you anywhere. Approach them politely, explain that the gift of the property failed because it was owned as JT, and let them say how they're going to resolve matters. Don't be a dick about it.

Sorry this has happened to you. This 100% does not sound like negligence. Tenants in common and joint tenants are pretty common turns of phrase. If the answer came back clearly that it was one not the other why should the solicitor have checked this?

Get a solicitor or direct access barrister who specialises in contentious probate asap.

I would ask them to consider:

1. Whether the conversation in which the parties confirmed the property was held as tenants in common operated to sever the tenancy.
2. Failing which, maybe explore whether H now holds on a common intention constructive trust or similar in accordance with W's wishes
3. Whether (if 1 and 2 are no goes) the solicitor should be liable in negligence for (1) relying on the parties to confirm something of such importance without checking the land registry himself, and (2) again failing to check when alerted to the possibility it was a JT by H's phone call, and (3) failing to contact W and alert her to the phone call/potential the property wasn't held on TC and therefore her will was worthless.