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

Has the solicitor already sent their notes to you? Any emails of advice?

The OP is already litigating. She’s been talking about making an application to have costs capped.

I'm surprised proceedings have been issued already? What written evidence is the OP relying on and what is the solicitor's defence? If there's nothing in writing the only witness (the W) is dead sadly. What do the other witnesses (the H and the solicitor) state happened? The key will be what the W instructed the solicitor to do at the time instructions were taken.

This is a very simple case, W sits down with a solicitor to leave her half share to her kids, that's it. W is English, home is in England, its a normal home, mortgage free, H and W are the owners. It doesn't get simpler, 45 mins to review the will prep notes and Final Will.

Solicitor defence is 'i was told it was TIC', OP case is 'you don't ask a vulnerable dying women, a legal technicality, something she knows nothing about and happened ten years ago and may have changed since, you just check it, because it takes 2mins and cost £7'

The solicitor was provided with the wrong information by clients. Client's problem.

No, we don't know that, there is nothing to written to confirm either the H or W was asked or that they answered. There is a single note in the Will prep 'TIC'. That's it.

You don't buy a dog and bark yourself. When you employ a professional they do the checks, because they know, not you, which checks need to be made. Last time you took your car in to be fixed, is the mechanic asking you technical questions about the car and trusting you? OR does do you expect him to know/check/plug in.

So you're presumably taking sol to court for negligence in not checking how house owned?

You're not arguing that the solicitor meeting proves the intent to have tenancy severed?

It's not really clear from your posts what you're trying to do or seek advice on.

Yes I'd agree with you. I wonder why they haven't they made an offer of settlement? Their case will be being run by their insurers. Is there anything else you can see that they are arguing?

While a solicitor needs to be able to rely on information a client gives them, good practice would always require a LR search. If they've drafted a Will that doesn't work (which it won't if the W leaves her share of the house to the kids but it's owned as JT) then the solicitor is negligent on the face of it.

That's not what you said in the OP.

This isn't a simple case. You are alleging a professional has been negligent. It is technical, and you need legal advice or could find yourself losing, with a costs bill of £50k.

I happy to do either, the easier seems to be that the meeting is enough to sever the tenancy and therefore the share never passed. As that was the intent and it was mutual. H and W were both there.

Law firms don’t defend negligence cases unless they are confident in the outcome. Neither would their insurers authorise it. Why would they. We are getting one very confused side of the story from someone who clearly thinks they know better than everyone else.

That’s two completely different cases against different parties

But the solicitor has drafted a Will for a dying woman that does not work. The solicitor is under a duty of care to ensure that the Will drafted works according to the instructions given.

Honestly...basic good practice particularly in a blended family is do a LR search. It's not going to require extensive litigation. There's no arguable point if the tenancy hasn't been severed.

101 , if a solicitor is prepping a Will involving property they should check the Deeds. You can't solve a problem until you understand the problem, this is how the rest of the working world works, but not in Law, they just operate blind taking the money and hiding behind Legal process. 1in 5 Wills put together by Solicitors are in Error. The Law Society did that blind test.

No that's not true. You can't imply severance.

But I do think you have a case in the solicitor drafting a Will that doesn't work if the tenancy is held as JT.

Not at all, it's all there in the original post. Yes work has happened since then, but as is normal, a solicitor defends it self by throwing money at it, in this case a barrister who racked up 7k worth of costs in one morning. This is normal and happens across the board, every nows the legal system is for the wealthy.

I happy to do either, the easier seems to be that the meeting is enough to sever the tenancy and therefore the share never passed. As that was the intent and it was mutual. H and W were both there.

You can't do both though. You need to seek advice as to which is the more likely to succeed. You seem to have started action without identifying which course of action you've started!

The change from JT to TIC has to be made and registered at the land registry, a solicitor can’t do it in a few minutes. It would have been good if the solicitor checked that it was definitely TIC but lay people who own property ought to know which they have and what the implications are. Most married couples are joint tenants. You can’t change it posthumously.

They would not have obstructed counsel charging £7k for the day unless you are wrong. Seriously. If the solicitor has been negligent then it will be covered by PII. If they are fighting then there is a reason for that.

"They include: severance by written notice; severance by an act of a joint tenant 'operating upon his own share'; severance by mutual agreement; severance by mutual conduct; severance in consequence of unlawful killing; severance by merger of interests; and old archaic means of severance."

They fight because they don't want the indemnity premium to go up, plus terrible publicity, and as we had asked for a cost capping hearing, they knew we would fold if it was refused, and it was refused, because in the high court, £50k - £100k is pocket change, so they see now reason to cost cap at £50k, or £74k or even £100k, because the judges are living in la la land.

And i'm liable for the £7k, not the solicitors, as when i withdraw i take the cost. If i hadn't withdrawn you really think the solicitors pay £7k, no.

No I think you're barking up the wrong tree arguing that actual severance was implied I'm afraid. I wouldn't run that argument.

BUT as I said, the Will would only work the way the W intended by the property being owned as T in C. And that's where the solictor has potentially messed up in not actually checking/preparing the severance documents. The solictor is under a duty of care to prepare a Will that works. If the Will actually states that half the house goes to the kids but the house is owned as JT at the date of death then the solictor is on the face of it negligent. The severance is usually carried out BEFORE or the same time a Will is signed too. So I'm.assuming they can't argue time factors before death.

OP, are you trying to represent yourself? Please don’t do this- you are completely out of your depth. You need some proper advice before you incur any more costs.

i agree solicitor has been negligent, but felt the easier path is to show " severance by an act of a joint tenant 'operating upon his own share" ie the W making a Will that leaves her share to someone other than the H, plus the fact he is there in a legal setting with the solicitor "severance by mutual agreement; severance by mutual conduct", if you want more info, the notes also say the H would move into a large camper home the W gifted him, this was a peace deal. But ultimately the H wouldn't have needed to go anyway, he has enough cash(due to his own inheritance) to simple pay out the half share of the house.