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

I don't understand why it got to a stage of a cost capping hearing that you appear to have lost.

What happened when you complained to the Legal Ombudsman? Did he find no fault on the Solicitors part? If it got to a professional negligence claim, why are the Solicitors' insurers not running this? This all seems very odd.

So if the W shouldn't have been doing the will due to her dementia, surely would it also not be she wouldn't be able to change from JT to TIC?

Well she has to declare she is of sound mind. A diagnosis of dementia would cast doubt over that so that would possibly lead into POA or court of protection territory. O P doesn't mention a written diagnosis I don't think. I believe she was just giving an example. I was just pointing out that legally a person with dementia couldnt make a will unless a doctor said they were of suffiviently sound mind.

I was just referencing the first paragraph of the post above. Solicitors should know about safeguarding and due diligence.

OP, I fully get your anger at the legal profession, and you are right that it should be standard procedure to check these things, which clearly at the moment it is not. You have been screwed over by both the husband's duplicity and the solicitors lax approach.

But you need to work out what your primary objective is, you either want to start a campaign to put pressure on the legal profession to improve their guidelines on this, in which case, all power to you, go get em.

or

You want to explore resolving your own personal loss, in which case you NEED to put your trust in just one good lawyer to examine everything and see if he/she can unpick the situation for you.

if you then want to upend the system you can do that once your problem is resolved one way or the other - I don't think you can do both, forget how incompetent or not the solicitors where for now, focus on the house, the land registry, the will and finding a good reliable counsel.

Because it’s their job.

Unless you know what the contract with them was, you don't know if it was their job at all. As has been pointed out, it may be that OP's parents just paid for a very basic will service which covered recording their wishes and no more. For all the OP claims doing a Land Registry search takes two minutes, it actually isn't true - especially if you factor in reporting back to clients and advising in writing.

Completely understand your frustration OP. I'm involved in litigation, not my choice, where the ownership of property is pivotal to the outcome.

At no point did the solicitor for the instigator of the litigation bother to check the LR and advice given to his client has been based on false information. Once I sent proof of title things changed, of course.

It's sloppy and poor practice not to check something that is so intrinsic to the desired outcome.

Never engage a solicitor then, what’s the point? .

I can tell you did be held legally liable for NOT mentioning something a client hadn’t even asked. Clearly the Financial Ombudsman has more teeth than the law society.

Shockingly poor service and I can’t believe they are defending themselves. ALL professionals know you can not take a clients word on such matters.

The solicitor knew that the validity of the will was dependent on whether they were JT or TIC - that’s why he asked the question. It was crucial that the information was correct so either he should have asked for evidence or checked himself - not just blithely taken their word for it.

You can make a will while suffering from dementia. It's whether you have "capacity" at the time that is relevant and there are strict tests.

Also the solicitor should have seen W privately if there were any doubt.
I would get independent legal advice and hopefully you can claim against the original solicitors for negligent advice. They will have insurance for this kind of thing

Any solictor taking that approach will probably end up having to make a claim on their PI insurance sooner or later!

They have a duty of care to prepare documents that work effectively according to their instructions. In order for the share of the house to pass via the W's will rather than by survivorship the house had to be owned as T in C. It wasn't. The solicitor should have made sure it was by severing the property and no they shouldn't have just taken the client's word for it.

The SRA regulates the industry and is actually completely separate from the Law Society, which represents the industry. The SRA is actually quite harsh on solicitors - the young solicitor who was struck off for rail fare evasion springs to mind.

Agreed. Solicitors pay into the Solicitors Indemnity Fund which acts as an insurer almost if a solicitor messes up. It's in the interests of the profession to ensure high standards so that the premiums don't increase for everyone else if too many claims are made. It's not a closed shop pandering to its members. The SRA is fairly ruthless.

Also the solicitors probably pay an annual fee for access to the land registry and know how to do this. A dying person won't.
A solicitor's job would be to check this basic point
Their professional indemnity insurance won't argue too much about this one!!

How do you think the SRA should be funded then? Genuine question.

• 1 in 5 wills may contain errors, but how many of those could be resolved by a LR check? I bet that is a tiny % of errors.
• of course SRA is funded by solicitors, accountancy bodies are funded by charging annual fees for accountants etc. that's how it works.
• i don't think it is practical for solicitors to be expected to check every asset in a will. The assets change over time. For e.g. I might have an savings account in mine with £500k+ in it, more than the value of my property. Should the solicitor check that and whether it is in joint or sole names? Where do you start / stop determining ownership of assets in wills? It would be a slippery slope if you proved the solicitor was negligent not checking.

Look this is REALLY simple.

1. You tried to sue the solicitors for negligence.
2. You tried to have costs capped (God knows who advised you to do this since it was never going to succeed) and had to pay £7k of costs incurred by the other side.
3. You withdrew your claim.

As such THAT IS IT. It matters not one jot now whether they were negligent or not. You commenced litigation and then ceased litigation. You can no longer sue them.

I'm also confused about this. Did you not first complain to the Legal Ombudsman (after following the law firm's internal complaints procedure)? Did the complaint to the Legal Ombudsman fail? Did you then bring a claim against the law firm for negligence? Did the law firm's insurers get involved (as would be normal procedure) and did they contest the claim? If so, on what basis? Did you then withdraw your claim after you failed at a cost capping hearing?

If the solicitor had reason to believe your mother didn't have capacity to know whether the house was in joint names or not, he should have refused to allow her to sign a will anyway.

If anything it will have been the insurance company defending the firm in question.

That's a very odd conclusion to draw. The point is to make sure you engage a solicitor to do the job you need them to do, and pay for it. Alternatively, if you have chosen to opt for a strictly limited service at a cheaper rate you recognise the dangers inherent in that course and take alternative steps to protect yourself.

To add to the things I don't understand... it appears you have started the claim against the firm of solicitors without any legal representation? Is that right? Why? If you had a strong case did no one agree to take it on a CFA basis?

The Solicitors Indemnity Fund largely stopped acting as the universal insurer some time ago. Solicitors now have to get insurance on the open market. However, given that that is more expensive, it is even more in their interests to ensure that standards are kept high.