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

In Carr-Glynn vs Frearsons, the solicitors (Frearsons) were held to be liable to a beneficiary who had been left a half share of a property in her aunt's will. The bequest failed because the property was owned as joint tenants, so passed to the surviving tenant. The deceased had been unsure how the property was owned and said she would check the deeds herself. The Court of Appeal held that the solicitors should have advised the deceased to sever the joint tenancy and prepared a notice of severance. So OP is correct that a solicitor does have an obligation to ensure that the testator's intentions will be executed effectively.

Having said that, it seems the only evidence OP has as to what happened is that the solicitor made a note saying "TIC". OP was not there, so they are guessing when they say the solicitor asked how the property was owned and took the couple's word for it. The note may indicate that the solicitor advised them to sever the joint tenancy in order for the wife's will to be effective, for example, but the couple did nothing about it. We simply don't know what actually happened.

OP refers to a response as being "typical of the multiple solicitors I've dealt with so far". It seems therefore that several solicitors have told OP the same thing. Most people would accept that is because solicitors know the law and they don't have a case, but OP clearly believes they know better. The SRA (which is not some kind of old boys club as OP seems to believe) also concluded that OP doesn't have a case.

As has been pointed out on this thread, OP started legal action against the solicitor, spent a lot of money on an ill-advised attempt to get a cost capping order then, when that failed, discontinued the action. Whether OP had a case is now entirely academic. Having discontinued the action, OP is now unable to bring a case against the solicitors.

Unfortunately the OP seemed to have run two contradictory arguments at the same time.

Firstly that the severance was implied by the meeting and the drafting of the Will (likely to fail but if successful, the solicitors weren't negligent as the property was successfully severed and it's merely a probate that has gone wrong)

Secondly and contradictory, that the solicitors were negligent in not severing the property.

I'd have gone for number two as I think that was the one that would have the greatest chance of success. Good practice would be to ensure the sev had happened. That's a simple fact so I'm not sure what went wrong with the OPs case other than there's things we don't know. Severance is not something you would advise a client to go away and do themselves.

The TIC note could have been a reminder that the property needed to be severed and it just never got done. Or it did, but the LR wasn't updated and the deed of severance has been lost . Who knows.

Anyway all a bit lost in the 15 year sands of time...but interesting nonetheless.