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

yeap, we all make mistakes, although i would argue that when putting a Will together that deals with property, and the money that involves given the price of property, it should be part of the Will writing process, a copy of the Deed should even be attached to the Will. 1. Get address, 2. Confirm with LandRegistry the owner, tenancy position etc 3 Create Will that works with those details...

one thought OP, I have just submitted form DJP after a death, told it won't be processed until may.

The solicitors who did the will may have submitted RX1 and its not gone through yet, if you can evidence that being submitted before the death, there is proof of intent??

They have indemnity insurance. And it would 100% cover the loss, if they used it. But instead they sent a £2500p/h barrister to defend themselves in my 'Cost capping hearing' that i had arranged. That barrister racked up, i think £7k worth of costs in one morning, which we were liable for.

Can’t you contest the will? The wishes of W are implicit in the following paragraph from your op, surely? The Solicitor cannot possibly have been in any doubt as to W’s intentions, and should have made sure that the house was indeed owned by the couple as TIC in order to facilitate the express wish of W, which was unequivocally that her children should inherit her share of the property straight away. The wording which the Solicitor said had to be added to the will, confirms this.

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.

I will ask. Thanks.

Have you got a solicitor? What is a costs capping hearing?

(Fwiw, it’s not the case that attempting to leave an interest in property in a will unilaterally severs the JT. You can only sever by will where there are mutual wills which evidence a common intention to sever.)

whos Will do we contest? Yes W Will states 'no life interest for husband', 'no restriction on sale' . We don't want to contest the Will, its correct, but worthless as property of JT not TIC.

Thats were you try to take the solicitors who did the Will to court, first thing you do to protect yourself is limit the costs they an rack up, ie a 'Cost capping hearing'. But even that costs £1000's. Anyway, a Highcourt Judge wont cost cap below £50k, they don't have a reason for this, its just a number thats in there head as 'reasonable'

H was present during the Will writing, and you don't need both parties to agree to a severance, only one has to want it. H can't block the severance, you just have to have made reasonable attempt to let them know. Sitting in the same room is reasonable.

https://www.gov.uk/joint-property-ownership/change-from-joint-tenants-to-tenants-in-common

"If you cannot get the other owners’ signatures you can instead send a letter certifying that you’ve done one of the following with the notice of severance:

• given it to all the other owners
• left it at the other owners’ last known home or business address in the UK
• sent it by registered post or recorded delivery to the other owners’ last known home or business address and it has not been returned undelivered

"

I suppose I meant contest the outcome of the will. I have no legal knowledge, but when the outcome is so much at odds with the intention, due to the lack of understanding of the person making the will, who was evidently very ill at the time, it seems very unjust if there is no course of appeal,

Fabulous it sounds like you have all the knowledge so crack on. Those of us who are actually lawyers can look at other threads instead.

I'm here for advice, its doesnt mean i know nothing, but your response is typical of the multiple solicitors i've dealt with so far. Very poor form.

No he didn’t. The wife was there when the wills were made.

I agree you don’t need both parties to agree to a severance- that’s not what I said. You can’t unilaterally sever by will, because there’s no requirement to tell people what’s in your will- you could therefore get situations where someone benefits from being JT if the other owner dies first but severs the JT if they die first, which is obviously unfair. I do hear what you’re saying about the husband being aware of the situation in this case but I think it’s really unlikely any court would want to move away from the general principle that you can’t unilaterally sever by will. You’ve got a much stronger case against the solicitor. What advice have you been given on this?

I’m beginning to see why you’re having difficulty..

(Sorry, meant to quote op.)

I think costs capping hearings are very unusual and only done in exceptional cases. If the judge has limited their costs to £50k that's unusual, usually costs would be higher. You really need a lawyer as to be frank you are unlikely to succeed without one - this is a technical legal area with a lot of case law and legislation. If costs are an issue, look for a direct access barrister

Solicitor should have checked the land registry to see how the property was owned before the Will was signed. So you may have a case of Professional Negligence against the solicitor. A solicitor writing a Will owes a duty of care to the beneficiaries of the Will as well as the testator.

The solicitor was also acting for both the H and W so was under a duty to explain to both parties the effects of the Wills they were signing. The Wills should have been drafted according to the instructions given. If the property was held as JT the Wills as drafted would not work in accordance with the instructions given.

Also severance wouldn't have been implied in the discussion in the office. There are several ways of doing it but they all involve a bit a paper being signed (mutual.deed of severance or alternatively a notice of severance if done unilaterally by one owner). The Land Regsitry should then be notified and a restriction put on the Land Registry. However this takes time. It doesn't affect whether the property is severed or not.

OP what has the solicitor who drafted the Wills said? They should have taken copious notes particularly as one of the testators was near death.

"In my experience of making a will (with someone who is widely recommended on MN) ..."

That's an interesting comment. I think I know who you are referring to.

I think it is worthwhile speaking to different solicitors before choosing one. Not all solicitors are the same.

Just as a quick example, (sorry this is quite a long story) a couple of years ago my father died and, as executor, I had to sort out probate etc.

At the time I was rather overwhelmed. So I phoned three different solicitors companies and the responses were very different indeed. Two of them were very dismissive; they weren't interested in my questions at all.

But one was, and she took the time to talk me through what needed to be done. She also explained that her fee for doing work was quite high but that if the situation were quite straightforward then a more junior colleague of hers could undertake the work (for about 60% of her own hourly fee).

In the end, I read up on applying for probate and did it all myself.

However, I did really appreciate the time she took to explain things to me.

As a result of that, when DH and I came to updating our will last year we just went straight for this solicitor that I had spoken with before. Our situation is rather more complicated than usual in that DH was born abroad and has inherited family property in a country that has very different inheritance rules to the UK.

Once again, she took the time to explain all the different issues and helped us make a decision as to what to do. To be frank though, at her hourly rate (plus vat) this did cost quite a bit, but for us, I think it was definitely worth it.
.

TL;DR from my experience you really do need to shop around before choosing a solicitor. They are not all equally good.

I'm having difficulty because one very daft senior partner solicitor couldn't do a simple job, the simplest of jobs, protect a half share in a family home, bread and butter, day in, day out work, solicitor work 101. I'm sure there are better ones out there.

And why would they be higher that £50k. It should be normal to limit your exposure when going into legal proceedings, and the barrister that turned up shouldn't be able to bill £2500k an hour. Its law, its not rocket science. Law is a flow chart, which has been highjacked by opinions.

There are no significant notes, very brief.

What you need to do is find a decent contentious probate solicitor. You will need to see the notes made at the time instructions were taken and try and find evidence that the W instructed the solicitor that her intention was to leave her share of the house directly to her kids. Everything follows from there.
Look at email correspondence or a letter of advice too. Possible draft Wills/draft Mutual Notice of Severance.sent to the W for approval.

The solicitor who drafted the Will will need to tell their insurers so you may not need to go to court ultimately if you can get that information. They will probably settle.

The £2500 was not for an hour. There is preparation, travel etc.

costs capping is for absolutely exceptional circumstances only. Litigation is expensive