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

Good practice is to assume that a client has absolutely no knowledge of the law or its implications no matter how assertive they sound.

Absolutely agree

Don't even bother asking OR explaining, your talking a dying women, or maybe someone who is just very old, or someone who is just daft, JUST check the LR. The client doesn't even need to know about JT and TIC, that's the point of paying a professional. If the Sol find the tenancy not 'correct' they then tell the client and get it changed, 'here another form you need to sign'. simple

Why are we trying to read peoples reactions, judge their response, and gauge if they understand, when the professional in the room and can just check the SOURCE. This is flow chart, it is exact, it's not wishy washy.

Can a severance of the JT be inferred?

I think you should stop and ask yourself what you actually want from this thread, OP, because so far it just seems like you want everyone to agree with you. Which, okay, but it’s not going to actually help. The advice you have repeatedly been given is to contact a contentious probate solicitor, which will be a lot more helpful than circular arguments on an internet forum. We can’t resolve the problem, but they may be able to help, or tell you that it’s not worth trying.

or ally severance of JT must occur before death but if there were mutual wills not sure if this might help.You need to see a land law specialist who knows probate.

There is an exception to the rule that severance cannot be effected by will, namely an execution of mutual wills by joint tenants intending to bring about a severance. Such a position arises where the course of dealing between the parties gives rise to the inference that both parties mutually considered their interests as tenancies in common and were prepared to put that inference forward in writing (Williams v Hensman 70 E.R. 862 per Page Wood V-C). Such a mutual intention must be unambiguous. That unambiguity can be perceived as long-held assumptions between the parties that they were holding as tenancies in common (Gore and Snell v Carpenter (1990) 60 P & CR 456, ChD) or - directly addressing the wills point - where the two parties each direct in their respective wills that they each dispose of their ‘share’ in the land (Re Wilford’s Estate (1879) 11 Ch D 267).

If you have discontinued your action against the solicitor then that course of action is closed.

I'm not sure where you can go other than a claim that probate wasn't carried out properly, but as the asset didn't legally exist to be passed as part of the process, that may sadly get you nowhere.

You do need a lawyers advice, but the avenue of going after the solicitor is closed I think, so a moot point, however painful.

No but the OP.(if she's suing the solicitors) should not be running this argument anyway.

I think there is a bit of displaced anger here. Your mother has let you down. She put her money into a buying a house with her husband and didn't protect it. It will have been explained to her at the time that a JT means she would not be able to leave any of the house to her children. She would have had the opportunity then to ringfence her contribution. She had years to sever the JT. She had years to write a Will. Leaving it until she was dying was foolish. Sadly, her choices meant she didn't have half a house to leave you and your sibling(s).

A mutual will is very unusual. I don't think it applies here?

Yep, its good legal research but my money is on the wills here being mirror

but we also learned about either rx1 or tx1, which is useful, i think it might be rx1?

I agree the majority are saying 'contentious probate lawyer', which may happen.

I think everyone should agree that asking laypersons about technical legal matters should stop, and the professional in the room should throw 2mins and £7 at checking the Land Registry. When a question can be answered exactly/correctly it should be answered exactly and correctly.

W let no one down. The solicitor let her down, as they were too lazy to check the LR. End of.

Why would W know she needed to sever the tenancy? And as stated before it may well have been severed and that paperwork is safely stored in the house.

W confirmed her Will was in good order prior to her death by dealing with a long standing, respected, large solicitors firm who have a specialised Wills and probate department and W sat with the Senior partner of that firm for that Will prep.

It's RX-1, I mis typed, sorry, that's the form used to submit an application for a restriction to the registry. SEV is a specific form for severance of a joint tennency

This, how much money are you wanting to get your hands on @1452kc ?
Must be a pretty penny when you're probably going to spend so much on legal fees.
But still think its pretty shitty you're so intent on getting your hands on it ASAP!
Would you accept him buying you out, or is a huge part of it getting to force the H out of his home?
Like you'll feel you've won something?

Yes so the SEV1 form is the form the OP needs to look for. Although it does not sever the tenancy.

The actual severance of the tenancy is usually done by a Mutual Deed of Severance. Or if it was done only by one owner (which seems unlikely here) then it's the Notice of Severance. That's the relevant document. Not the LR documents although if she finds a SEV1 form lying around that does indicate there was possible intention to sever.

asap? this started many years ago, its not asap. Also the prefered option was a buyout, he has more than enough funds. You are just making things up now. You wont get another response

No. Not "end of". When your mother bought the house she could have ensured that it was owned 50/50 and made a Will leaving her share to her children. Then she had 10 years after that to sort it.

as i stated, paper work could be there. Solicitor should have confirmed that severance made it to the LR. You understand that the absence of the restriction will make it so, now show me what layperson can pick that out on deed. Now you understand why the professional in the room, is supposed to do the work.

The law society needs to do something to simplify the process so that the will when it is drawn up can act as a is it SAR form or whatever to sever the tenancy if that is the intention and in that way no need to double check the land registry. Clearly that was the intention of her and it seems a pity.

If your mother had severed the JT it would have been recorded on the land registry. Having papers lying at home means nothing.

Assuming that a deed was drawn up by the solicitors we must assume they have a copy, and I'm guessing they don't - so the only chance of there being a SEV-1 or a home brew deed is if its in the house, and if the H is as sneaky as being portrayed it would be destroyed by now surely.

But if it exists...

Dis the solicitors draw up any paperwork, SEV, deed, notes to the effect they were doing this work?

Papers lying at home could be vital. The update to the LR is admin really. Also there is a time lapse between the Severance and the LR being updated.

What the OP needs is the deed of Severance. Normally kept with the Will. Possibly ripped up by the H and if so (and the application to update the LR had not been posted) then unless the solicitors have any knowledge of it you can't prove severance.

yeap, but this is how it works, in the past solicitors were under no legal obligation to ensure the severance made it to the LR, they would just prep paper work hand it to the client, take the money and go home. They probably are still not legally obliged to do so.