Tenants In Common

[rippona]

My farther recently passed away. he asked a firm of solicitors to ammend the tenancy so that it was split(Tenants in common) as my mother is in a care home. This they did in 2007. For some reason the will was never changed which means the split in tenancy is in effect worthless. Do the solicitors have some liability as my dad obviously paid them to do the split and i can think of no reason why the will should not have been changed at the same time.

[bednobs]

the solicitors will only do the work that is asked of them and if your dad only asked them to make the property tenants in common, then that's what they'll do. How would they know who he wanted to leave his share to uless he instructed them?
Let me get things straight. If they had remained joint tennants, she would have had the whole property on his death. I presume that his will leaves everything to her, so in effect she is getting exactly the same thing as if the tenants in common move hadn't been made - all of the house?

[dzug2]

What do you think the will should have been changed to?

It could be that the will was never changed because a change in the law in late 2007 rendered it unnecessary

[rippona]

As my farther had requested the tenancy to be split so that the whole estate should not dissapear in care fees surely the will should have been changed to my sister and i who are executors.We are stated in the will after my mum. there was no point having a seperate tenancy and then leaving the will in favour of my mum (who has no capacity) or if there is a sensible reason i cannot think of one.

[bednobs]

if your dad had wanted you to have his share of the house, then he should have made a will to that effect i guess.
However, even if he had made a will saying that, it is obvious that he would have done it to deprive your mum of assessts that could have been taken to pay for her care. the council still could have asked you for that money despite who your dad left it to as it's deliberately tryign to avoid care home costs. There is no time limit on this (unlike IHT)

[New Judge]

It is not at all clear from what you have said whether the solicitor was asked to change the will. In fact you have only emtioned changing the tenancy of the house.

As bednobs has said, solictors will only do what they are asked. You say "...surely the will should have been changed..." Why "surely"? The solicitor cannot be sure why your father asked for his half of the house to be discreet rather than automatically revert to your mother under a joint tenancy agreement.

[themas]

You say your father wanted the change so that his half of the house did not go to your mother. IF he told the solicitor this then, in my view, any half way competent solicitor should have asked him about the will - even if he didn't specifically mention it himself. (Apart from the fact that this is a matter of competence, the solicitor would surely have been interested in the will issue as a means of generating a little more income.)

However, as you will realise from my "IF", how are you going to be able to get the solicitor to accept that he/she was told the reason for the change? If your father gave no reason (or the solicitor says he did not & you can't produce evidence to the contrary) then you will have a much more difficult job getting anywhere. The only basis on which I think you might be able to have a go at it would be that an elderly person (I assume this applied to your father) would be extremely unlikely to go to a solicitor with a request to change the ownership arrangement without a good reason & the one most likely to apply would be to leave his share of the house to someone other than the joint owner. It could perhaps be arguable that this should have put the solicitor on notice to enquire about the reason. However, this is very tenuous.

I think all you can do at this stage is enquire of the solicitor exactly what happened - which should be recorded in their notes of the case. If you are not satisfied then you can pursue the complaints procedure (see Law society website).

Incidentally, there should be correspondence from the solicitor to your father - an engagement letter & statement of what the instructions were. What does that say? Also, was a power of attorney on behalf of your mother involved at all, or was the change made with only your father involved? Was it necessary for someone to sign forms on your mother's behalf? If that was done, who did it & what did they know?