Negligent advice by solicitor?

greco_2

My mother in law transferred ownership of her house to her three children some 12 years ago. Her instructions to the solicitors were to carry out the transfer for the benefit of her children, an instruction which the solicitors confirmed in writing. When the transfer was completed, the solicitors asked the children to sign a form confirming that the property was being transferred as Tenants in Common. There was no explanation of what this meant but it was assumed that the transfer was being carried out in accordance with my mother in law's wishes. The oldest child died tragically two years ago and the solicitors were asked to confirm that his share of the property would pass to his surviving siblings in accordance with their mother’s wishes. The solicitors stated that as Tenants in Common, his two children would inherit his share. My mother in law was very upset to hear this as she had little contact with her grandchildren and did not wish them to benefit from their father’s death. She has since died, the property has been sold and one third of the proceeds has been paid to the grandchildren.

We believe that the solicitors owed a duty of care to the three children to make them aware that the property could be transferred as Tenants in Common or Joint Tenants and the differences between them. Had they done so, they would have undoubtedly opted for Joint Tenants which would have been in accordance with their mother’s wishes. The solicitors failed in this duty and as such, the surviving children feel that they should be compensated for the financial loss. I would welcome forum contributors views on the matter.

MeteredOut

Exactly what did the solicitor confirm in writing? That, on death, the estate would pass onto siblings, and not the deceased children?

Unless you have clear documented proof of your mother's wishes as provided to the solicitor, I think you're unlikely to be able to prove the solicitor failed in their duty.

I presume you are one of the two "other" children?

flaneurs_lobster

Seems to me that the siblings should have asked some questions when they were asked to sign something if they didn't understand what it was they were signing.

The solicitors stated that as Tenants in Common, his two children would inherit his share. My mother in law was very upset to hear this as she had little contact with her grandchildren and did not wish them to benefit from their father’s death.

Did you actually mean this part of your post to make your MIL sound quite so heartless?

MyRealNameToo

https://forums.moneysavingexpert.com/discussion/6689174/negligent-advice-by-solicitor

Did she seek advice from the solicitor or simply instruct them to put it into the kids names as you imply?

If the idea was that as each sibling died the others inherited their share what was to occur when the last sibling died or was that not to be specified?

Normally if you want control of the property beyond your own life you dont give it away to your kids but instead put it in trust as this also protects the property from if the siblings get divorced and can specify things like when it can be sold, what happens when someone else dies etc.

The duty of care would require her to have asked for advice not given them specific instruction which they dealt with on a non-advised/transaction basis. If its the later then any outright gift structure creates issues with controling what happens after the gift.

SiliconChip

Have the surviving siblings really had a financial loss? They have a third of the value of the property, which is just what they'd have had if the other sibling had survived longer than the mother. Sounds like a bit of a case of sour grapes to me.

Keep_pedalling

Well transfering the property was a pretty stupid thing to do in the first place, but owning as JTs would make that even worse as it would mean only the children of the last to die would benefit from the arrangement if the property was kept in the family until that happened.

I really find it rather disturbing that anyone thinks that they should benefit from their sibling’s death at the expense of the sibling’s own children.

daveyjp

The mothers wishes were granted - transfer of the asset to her children. Once that is done any confrol she had over the over the future of property is gone.

Just because tenants in common had an unexpected consequence does not mean joint tenants was the better way to do it - that can present other issues which could have presented themselves in different circumstances. One being the other parties blocking a sale of the property.

The three siblings owned their own share in the property, it is their asset to do with as they wish and in this case the wish (or the law if intestate) dictates assets go to the deceased sibling's children.

Keep_pedalling

A couple of other points, any one of the joint owners of a property can sever the tenancy without the agreement of any of the other owners, so it only take one owner to convert to TiC from JT so even if the original set up was JT it could have been changed at any point over the last 12 years.

The other point is that even though the transfer occurred 12 years ago the house still formed part of MILs estate for IHT purposes and the residential NRB has been lost so I hope her executors were aware of that.

user1977

Who were the solicitor's clients? Mum alone or mum plus all the children?

Flugelhorn

https://forums.moneysavingexpert.com/discussion/comment/82190922#Comment_82190922

I wonder if the children had their own legal advice?

greco_2

https://forums.moneysavingexpert.com/discussion/comment/82190820#Comment_82190820

She wasn’t heartless at all. She simply wanted the property to remain with her children. The solicitor doesn’t seem to have envisaged the possibility that one of the children might predecease her. To illustrate the point further, if my wife and I had died together, her step grandchildren with whom she had no relationship, would have received my wife’s share. Can you imagine that she would have wanted that?