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

The only problem with running that argument is that, if you win, the solicitor who drafted the Will won't be found negligent (as the house was severed).and you will be liable for their costs. It will just be a probate that was carried out incorrectly and needed to be rectified and therefore the kids get half the house as if it had been severed.

You could run an either/or I suppose. So if you fail on proving that the solicitor was negligent in preparing a Will that didn't work you could at least try for implied severance.

Have you instructed a contentious probate solicitor?

I fear you are wrong in this, it is not uncommon for wills written by poor "will writers" creating a will trust to fail precisely because a severance of joint tenancy was not undertaken.

In my case I own a home with mum and dad, we all live there, dads will was written that a life interest in his third be given to mum, and on her death it passed to me.

This was done by a solicitor, but they neglected to add a restriction - when dad died the will failed and the house passed equally to me and mum. In our case this has no negative effect, and the JT status quo will simplify things when one of us passes.

But it proves that the will can and is totally circumvented by the single line not being present on the register.

The solicitor has accepted the word of one of the owners that it was held as TIC, it can't be proved that he, H, knew this to be untrue. When we made mirror wills we were asked about the ownership but we weren't asked to prove it. I think it would be difficult to prove negligence on the part of the solicitor, maybe contact the Law Society about it though.

Not at all, we took advice, they said go after the solicitor, we did, but for no good reason we couldn't get a cost capping. Take 2 mins to work out if you should do a LR check with a blended family where the W is putting in 'no restriction on sale', 'no life interest for H' and W is dying and not a legal professional and will not understand ramifications of TIC and JT, and where paper work that did sever the tenancy may be stored in the family home, that the children will not have access to once the W passes. This should have been put in front of a judge and 2mins later a ruling would have been made. 'Do the LR check' and then ALL solicitors who do Wills involving property would now be doing LR checks and everything would be cool.

I agree the solicitor was not negligent, they discussed the type of ownership and were ensured it was TIC - the land registry title is separate entirely to a will. I could leave Buckingham Palace in my will, but because I don't own it, it wouldn't happen.

Quite often assets, such as jewellery or art are bequeathed in wills, then the owner legitimately sells them and does not amend the will and that gift fails.

@1452kc are you actually trying to get advice from the many lawyers who hang out on these threads? Or just have a moan?
It's really not clear what you are asking, if you are actually asking something.
Something has gone wrong, there are mechanisms for putting them right.
It is unclear whether you have actually gone down the route of complaining about this to the form in question or not.

Due to the holding of the house, the second the wife died it passed to the surviving JT (both owning overlapping 100% shares), it therefore passed outside of the estate other than for purposes of IHT calculation, outside of the executors control.

The second the wife died the husband legally became the sole owner, nothing can over-ride that.

Once again, there is no written evidence that states the solicitor asked the question of JIT / JT prior to the W death. There is a single note 'TIC', its doesnt say if anyone was asked, who answered, if it was confirmed or if it was explained the ramifications if this was incorrect. 101.

I'm defo getting advice, but if there are many lawyers here, can you not see improvements need to be made. 1in5 Wills in error is pretty poor pass rate. I would be sacked. Do the basics, LR check.

Which is why I think the OP needs to run the argument that the solicitor was negligent in preparing a Will that didn't work and not discharging his/her duty of care to the beneficiaries by ensuring that the house could pass as the testator had instructed. A court would I think take a very dim view of a solicitor not taking proper steps to ensure that the house was owned as T in C. It's good practice as you can't assume anything.

why didn't your solicitor just pull the Deed? its takes 2mins, costs £7, why is the solicitor relying on laypeople on provide key technical facts when preparing Wills?

Ok
So you don't want advice here. You just want us all to say that all lawyers are terrible and can't write wills properly, because in this situation a lawyer may have been negligent. I wasn't there and I'm not a specialist, so can't say either way that he was.

The only valid paperwork in a conventional sense is a form TX-1 which puts a restriction on the register, a form A restriction reading

“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.”

If that is not on the title, the title is JT and the survivor can submit DJP removing the deceased owner.

Normally a co-owner severing JT unilaterally would issue a letter of intent to the other owners - BUT - they would be expected to follow through with a TX-1 to formalise.

A letter, unwitnessed, from a deceased person is unlikely to carry any weight if it exists, and if the husband here is at all savvy he will have destroyed any such paperwork.

You can only hope a TX-1 is in the system as yet un-processed, that might still not be enough though...

You know one fact, the LR wasn't checked, fyi, it was the same firm that managed the purchase of the home.

If your comfortable preparing Wills around property without checking the Deeds, carry on. For me if my solicitor is not checking the Deeds, i'm walking out. My business goes elsewhere.

It's called a SEV1 form. It doesn't actually sever a tenancy though and even if there's no restriction it doesn't mean the property isn't owned as T in C. The restriction just hasn't been added. At the very least it should have prompted further enquires.

Either the tenancy is T in C (in which case the probate has been carried out incorrectly but the OP is liable for the solicitors court costs as they weren't actually negligent) or the tenancy was JT and the solicitor was negligent in not ensuring the tenancy was severed so the Will worked.

I am saying solicitors can't write Wills properly, we have this example here. But also the Law Society is saying it after they did a blind test using many firms. This is feedback to solicitors that you need to improve, a 1-5 error rate is too high. You seem to be taking it personally, its not personal, but there is clearly an issue.

Imagine if 1-5 houses built collapsed? Lets apply that 1-5 to other professions.

I think you are being a bit hard done by. When my mother remade her will to leave her share to her children rather than her husband she was asked about the house ownership. She said she didn't know, and the solicitors said they'd check. They then said that the tenancy needed to be changed from joint to in common. They wrote a letter for mum to give to dad severing the tenancy. They then applied to the land registry to change it.

So, you're right, it sounds like they should have checked. But some of your earlier responses suggest that your parents sounded quite clear on it being TIC. And the conversation your mum's husband had with the solicitor the following week sounds quite damning, if it is provable.

But, you need to stop spouting about 101 stuff and how many wills are incorrect. You only care about one will, your mothers. You will alienate any solicitor that tries to help you if your attitude is that they are all incompetent, a closed shop, don't do basic checks etc.

you become liable for the other parties costs if you simply withdraw, we withdrew because we couldnt get the cost capping, this bears no relation to if the solicitors were negligent or not.

Because it’s his job. And this is an important detail, resulting in significant loss to W’s children. He 100% should have checked and not relied on verbal confirmation.

Totally agree with the last paragraph. OP you need proper legal advice from another solicitor, taken calmly.

Lawyers are not a closed shop like medics are, they will happily take potshots at each other (for a fee) its the nature of law, which at its core is the debating of facts and rules.

If you win your argument that the severance was implied at the meeting (which is unlikely) then assuming your case is against the solicitors who drafted the Will they will not be found to have been negligent. That's why I would not be running that argument. It's contradictory. Depends which court you are in as to whether there's costs against you.

Oh sorry...you've already dropped the case? Just reread your post. Shame as you could possibly have won on the negligent drafting point.

Regarding H conversation with S a week or so after Will was made. So, W goes into Hospice, H checks and finds out he can just destroy the severance paperwork that's in the house, leaving only the Land Registry JT.

A solicitor who prepares severance paperwork is under no obligation to log it correctly with the Land registry, it can be stored with the deed in the property, this is terrible practise, but it happens.

H leaves that meeting with the S after the 'what if its not TIC', and immediately makes a big ticket purchase, as he now confident his W Will is worthless and he will keep her half share.

So you brought a claim against the solicitor, made an application for costs capping despite this not being an exceptional case, then after you lost the application withdrew? So you no longer have a claim against the solicitor?

If that is the case you need to look at a probate claim, but get legal advice before you do

I think it depends how the client phrased their response, if he asked if the house was JT or TC and the OPs mum said assertively TIC, then he could reasonably expect she knew the difference.

If he only said "is it owned TIC?" then he could not be sure she knew there were two forms of ownership.

If she hesitated in her response, then he should have explored further.

In my opinion a good solicitor should not only ask the question, but also explain the difference and the importance of said difference, and offer to check if the client wishes.

I tend to agree it does not sound like negligence, sorry OP. It sounds like you have discontinued the litigation against the Solicitors now anyway? In which case, you could still consider contacting the SRA to make a complaint about them.

Also have you checked your household insurance to see if it includes legal cover?