Negligent advice by solicitor?

poseidon1

From the facts given here and in the previous post by the OP in 2024, I see no fault at all on the part of the solicitor in relation to the TIC point.

However I do see potential fault if the solicitor failed to confirm the tax implications of the ill advised transfer if MIL continued to live in the property concerned, as follows :

1. IHT and Gifts with reservation of benefit - for IHT purposes entire property value remains in MIL's Estate for IHT purposes and should have been reported as such on her death. Depending on the value of her other assets, IHT could have been in point.
2. CGT - legal ownership passing to the children 12 years ago, mean that the two survivors face a CGT liability on 12 years worth of property appreciation, whilst the inheriting grandchildren acquired their 1/3rd share at market value on their father's death so only 2 years of appreciation ( if any)

Hopefully the above tax points have been fully recognised and dealt with as necessary.

In passing, I would further observe that had the property not been gifted on TIC terms a portion of the deceased brother 's nil rate band on his death would have 'unfairly' accrued in favour of his siblings thereby depriving his own children of the full benefit of this for IHT purposes in relation to his own estate.

Incidentally, if deceased brother's spouse was still alive it would usually be the case that he would have passed his share to his own wife under the terms of his own will or potential intestacy. For the grandchildren to have directly inherited suggests to me their father left it to them in his own will so apparently considered it to be his share to pass on to whomever he wished?

That he chose not to leave his share direct to his own siblings, it would in my view undermine the contention that all three siblings 'understood' the house was gifted to them on Joint tenant survivorship basis. If the surviving siblings feel they have any meaningful case for deprivation of that 1/3rd share, surely they should be proceeding against the deceased brother's estate for apparently breaching their supposed joint 'understanding'?

As with other responses to this thread, I struggle to understand the basis for action against the solicitor on the TIC point. The OP may have more fertile grounds if there had been no tax advice given, although I would not be at all surprised if the solicitor originally indicated that tax advice was not part of their brief when instructed in this matter.

silvercar

surely they should be proceeding against the deceased brother's estate for apparently breaching their supposed joint 'understanding'?

People can write whatever they want in a will, you can’t sue an estate for being left out, unless you can show some dependency.

poseidon1

https://forums.moneysavingexpert.com/discussion/comment/82191470#Comment_82191470

Absolutely, the comment was to a certain degree ironic and designed to highlight the futility of the OP seeking redress for his mother's wholly ill advised course of action. Quite why the inheriting grandchildren have now become indirect targets of the OP's ire is beyond me.

greco_2

https://forums.moneysavingexpert.com/discussion/comment/82191686#Comment_82191686

How do you come to such a strange conclusion? The grandchildren are not targets of any ire. They have done nothing wrong and are fully entitled legally to the share of the property that they have now received. I have a good relationship with them both. My question simply concerned whether the solicitors had acted in accordance with my MiL's wishes. According to her, they did not although she is no longer around to confirm it.

When I bought a property 5 years ago, the very same solicitors took pains to explain to me and my wife the difference between Joint Tenants and Tenants in Common. It seems odd that they did not take the same trouble when my mother in law’s property was transferred a few years earlier.

I’m coming to the conclsion that further action on the matter would prove pointless. Thanks for those who took the trouble to reply without being judgmental. As for the others…….

poseidon1

https://forums.moneysavingexpert.com/discussion/comment/82192391#Comment_82192391

My apologies i had imputed you with what seems to be your MIL's desire her grandchildren should not benefit from their father's share , to quote from your original post-

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.

Notwithstanding, the above I stand by my other comment with regard to potential unfairness of those children being deprived of a portion of their father's IHT nil rate band if the property had indeed been set up as joint tenants.

No doubt the other tax issues I highlighted have been addressed and dealt with where necessary.