Declaration of trust

[Darren1975]

Really hope I cant get some kind of help here, my partner and i purchased a house together in 2013 we were understood it to be joint tenents, we live together with 2 children and are not married, we remortgagedlast year and were still it we was joint tenants.

Sadly my partner passed away last week after after an sudden illness leaving me alone with 2 children,although she had 3 children by a previous relationship so 5 in total, iam totally devastated and struggling to come to terms with her loss.

We never got around to doing a will, but had the comfort in knowing we were joint tenants.
upon her death it has transpired that our conveyancer has registered us as tenants in common, we were totally on the understanding we were joint tenants, I think I recall signing something to that effect as it started a conversation at the time between me and my late partner.
I have contacted the conveyancing solicitor who said that he just replicated the previous position on the total register and nothing can be done.
is there anyway I can trace the stage in what me and my partner signed this as iam sure we did,can I reverse this as it looks like her estate going to intestacy probate and her 5 children receiving her half leaving us 3 homeless.
any advice desperately welcome

[Amethyst]

Morning xxx I'm so sorry to hear of your loss, with this house issue coming to light it must be terribly worrying for you. I'll tag Peridot to look in for you -but can you tell us the approx age of the children pls, and is there anything that makes you think they'd want to immediately take their share of the house or attempt to force you and their half siblings to leave ?

Tenants in common, unless specific shares are specified, will mean your late partners share would be 50% and that would be split between her 5 children... so 10% each. Eventually, if necessary, you may be able to investigate buying each child's 10% back from them.

To find out how the house came to be registered as tenants in common rather than joint beneficial tenants you could ask the conveyancer and mortgage lender for copies of all data held about you - you can do this under the data protection act and it is free... they have 1 month to respond https://legalbeagles.info/library/guides_and_letters/court/subject-access-request?

You will need to also send a request to the conveyancers / original mortgage lender from 2013 who dealt with your original purchase as it sounds like that was where it was set up as tenants in common initially.

Do you have a copy of the documents from the land registry ? or a copy of the TR1 form - is that marked as "they are to hold the property on trust for themselves as tenants in common in equal shares" ?

[Peridot]

Hi Darren1975,
So sorry to hear about your partner. Really tough for all of you and not what you need to be doing, sorting out what appears to have been caused by a tick in a wrong box when you initially purchased the property. Do you recall whether there was talk of preparing wills at the time or protecting your partner's children from the previous relationship when you purchased?

As Amethyst mentioned you need to contact the initial conveyancers you used in 2013 to obtain a copy of their file notes. That should clarify what was said and then can be compared to what actually happened. If there has been an error then you could have a potential claim against the lawyers dealing with the conveyance. The problem is putting it 'right' with the land registry. The mortgage lender won't be bothered how the property was held so it will probably not be worthwhile contacting them. Did the 2nd lot of conveyancers when you re-mortgaged actually ask the question how you wished to hold the property (they should have done rather than assuming it was to be the same) There would have been forms for you to complete when the re-mortgage happened and usually there are tick boxes to indicate how the property will be held on those forms (including the TR1 which is the document that deals with the information needed by the Land Registry to update their records, as mentioned above)

As you have figured out if you can't prove it was meant to be joint tenants then your partners share of the property would be passed to the children although if they are all minors ie under 18 then it would be held in trust for them until they reach an age to deal with the property.

I'm afraid you will most likely need to get some face to face legal advice on this. You may have a claim against the estate as her partner and father of some of the children whose home this is.

Really not what you need when trying to deal with her sudden death and help the children through but it does need to be sorted out I'm afraid. A probate specialist should be able to help you but if you get hold of the conveyancing papers in the first instance then you can see the paper trail of how this has happened.

[Darren1975]

Thank you both for replying I need as much help/advice as I can get right now.
Life has never been so tough as it has this past week and there is no sign of things getting any easier.
my two children that live in our family home one is my daughter who is 19 and the other my 15 year old son who will be 16 in under a month.
my partner has 3 other adult children who live have their own families.

our original solicitor who undertook the conveyancing in 2013 looks like they have been struck off.
http://www.thebusinessdesk.com/north...n-stirling-law

We remortgaged last year with the nationwide, and visited our solicitor doing the conveyancing iam fairly confident we signed something at some stage to say we would be joint tenants because at the time It sparked a conversation off and I then reassured my partner that her and our kids would be well provided for in the event of my death.

I Was totally horrified to find out that we had been registered as tenants in common on the land registry when we both thought that we were joint tenants, the only document I can find that mentions joint tenants is a request from the original solicitor in 2013 to return a signed copy of the joint tenants form and other forms, I would have did exactly that at the time. but this was just a request at the time from the original conveyancer in 2013.

would there be any forms we would of signed last year during the remortgage that could prove both our wishes? if there was could I change that?
I have spoken to a probate solicitor who is arranging the probate the house is now going into intestacy probate and will be acting for the children and looks like the 5 children including my children will be given my partners half, so potentially worst case scenario is I have to sell our family home we have been in for over 20 years.
iam truly distraught and cant see a way out unless I can agree a way forward with the 3 other children.
I cant sleep and am still trying to come to terms with my partners loss .

[Amethyst]

You are looking at absolute worse case scenario - whatever happens you will still own 50% of the property, and your children who live there will own 20% between them, so there's really only the 30% that is potentially due to the three other children - you may be able to raise this on an additional mortgage if necessary.

Your original conveyancing was undertaken by this Stirling Law...

The Solicitors Regulation Authority (SRA) has closed down a Manchester law firm, more than four months after banning its director from conveyancing and ordering him to go on a mortgage fraud and money laundering course.

The SRA imposed conditions on the practising certificate of Glyn Alan Willmott, director of Stirling Law Limited based in the city centre, at the beginning of August last year.

The first was that he “may not undertake any form of conveyancing work and is not responsible for any fee-earner undertaking such work”.

It seems he was imprisoned for a mortgage fraud on one of his clients, but there may be known issues with their work and errors/negligence on conveyancing documents affecting other clients so it could actually be positive with regards trying to rectify matters but you will need specific professional advice on doing so - for now gather the information as much as you can. It looks like Gordons in Bradford were appointed intervention agents, however it was over 6 months ago so you might need to contact the SRA directly to find out where the files went.

Contact the intervention agent for help if the intervention took place within the last six months. Otherwise, contact us.

Name: Stirling Law Limited

Address(es): Westpoint, 3-9 Duke Street, Manchester, M3 4NF.

Firm ID: 519895

[Peridot]

Hi again,

I am so sorry its really not what you need when trying to deal with your loss.

As far as the previous law firm shutting down their files will have been passed to other firms and archived if needs be so the Solicitors Regulation Authority should be able to help you find out where the file went.

It seems that the issue of Joint Tenant and Tenants in Common was discussed bearing in mind your comments about the older children being provided for. It would be useful to see the document you refer to having been signed and returned if you are able to remove any identifying details.

Do you have a good relationship with your partner's older children? Have they given any indication of what they would want to happen. In any event I would say you have a strong claim under the Inheritance (Family and Dependants) Act 1975 having been there for 20 years and it being your home but hopefully you can all come to some sort of arrangement that you remain at the property until you decide to move or other event happens at which point, depending on values etc their shares may become payable. Reaching an agreement would of course be the cheapest and hopefully least stressful route than making a claim against your partner's estate.

As far as the re-mortgage is concerned the documents required by the Land Registry would be to do with the insertion of a charge against the property in favour of the mortgage lender. Did the solicitor ask whether you wished to change the way you held the property?

Try and find any documentation you had from both the initial purchase and the re-mortgage, there may be something in a letter you received explaining the process and forms needed. There could be an issue if you have signed the TR1 form which had been filled in already by the solicitors and they had ticked the incorrect box, but you would have been expected to check the form. There should have been a covering letter explaining the form though which may help.

Nothing has to happen immediately you need to take time to grieve for your partner and support your children, it must be very difficult for all of you. There are ways this can be dealt with that can allow you to remain at the property and this will of course need to be discussed with the adult children as to what they wish to happen, if you are unable to prove the solicitors dealing with the conveyance got the documents incorrect.

Would there be a way to raise the amount due to the other three children at this stage if how the property is held can't be unravelled? The two younger children could have their 10% held for them?

Hopefully you can get to the bottom of this and reach an agreement with the older children. Here if you need support through this.

[Darren1975]

Hi again,

I am so sorry its really not what you need when trying to deal with your loss.

As far as the previous law firm shutting down their files will have been passed to other firms and archived if needs be so the Solicitors Regulation Authority should be able to help you find out where the file went.

It seems that the issue of Joint Tenant and Tenants in Common was discussed bearing in mind your comments about the older children being provided for. It would be useful to see the document you refer to having been signed and returned if you are able to remove any identifying details.

Do you have a good relationship with your partner's older children? Have they given any indication of what they would want to happen. In any event I would say you have a strong claim under the Inheritance (Family and Dependants) Act 1975 having been there for 20 years and it being your home but hopefully you can all come to some sort of arrangement that you remain at the property until you decide to move or other event happens at which point, depending on values etc their shares may become payable. Reaching an agreement would of course be the cheapest and hopefully least stressful route than making a claim against your partner's estate.

As far as the re-mortgage is concerned the documents required by the Land Registry would be to do with the insertion of a charge against the property in favour of the mortgage lender. Did the solicitor ask whether you wished to change the way you held the property?

Try and find any documentation you had from both the initial purchase and the re-mortgage, there may be something in a letter you received explaining the process and forms needed. There could be an issue if you have signed the TR1 form which had been filled in already by the solicitors and they had ticked the incorrect box, but you would have been expected to check the form. There should have been a covering letter explaining the form though which may help.

Nothing has to happen immediately you need to take time to grieve for your partner and support your children, it must be very difficult for all of you. There are ways this can be dealt with that can allow you to remain at the property and this will of course need to be discussed with the adult children as to what they wish to happen, if you are unable to prove the solicitors dealing with the conveyance got the documents incorrect.

Would there be a way to raise the amount due to the other three children at this stage if how the property is held can't be unravelled? The two younger children could have their 10% held for them?

Hopefully you can get to the bottom of this and reach an agreement with the older children. Here if you need support through this.

Unfortunately these would of been posted back to the solicitor so I would not have a copy, my parents are assisting and have contacted the SRA and I will have to complete a request form this could take 8 weeks to see the documents they hold

[Darren1975]

Hi Darren1975,
So sorry to hear about your partner. Really tough for all of you and not what you need to be doing, sorting out what appears to have been caused by a tick in a wrong box when you initially purchased the property. Do you recall whether there was talk of preparing wills at the time or protecting your partner's children from the previous relationship when you purchased?

As Amethyst mentioned you need to contact the initial conveyancers you used in 2013 to obtain a copy of their file notes. That should clarify what was said and then can be compared to what actually happened. If there has been an error then you could have a potential claim against the lawyers dealing with the conveyance. The problem is putting it 'right' with the land registry. The mortgage lender won't be bothered how the property was held so it will probably not be worthwhile contacting them. Did the 2nd lot of conveyancers when you re-mortgaged actually ask the question how you wished to hold the property (they should have done rather than assuming it was to be the same) There would have been forms for you to complete when the re-mortgage happened and usually there are tick boxes to indicate how the property will be held on those forms (including the TR1 which is the document that deals with the information needed by the Land Registry to update their records, as mentioned above)

As you have figured out if you can't prove it was meant to be joint tenants then your partners share of the property would be passed to the children although if they are all minors ie under 18 then it would be held in trust for them until they reach an age to deal with the property.

I'm afraid you will most likely need to get some face to face legal advice on this. You may have a claim against the estate as her partner and father of some of the children whose home this is.

Really not what you need when trying to deal with her sudden death and help the children through but it does need to be sorted out I'm afraid. A probate specialist should be able to help you but if you get hold of the conveyancing papers in the first instance then you can see the paper trail of how this has happened.

iam sure this was discussed/signed, but when I called him to check he told me that, he basically told me he just followed on from how the original title deed was registered and that nothing can be done.

[Darren1975]

probably the most fundamental question is, if there has been a mistake by the solicitors and I can find a document that proves this at either solicitors, would I be able to have the deeds placed back as to our original intentions joint tenants?

[Peridot]

Hi Darren1975,

I think there may be issues with just putting back as you intended even with supporting documentation as your partner is no longer here to confirm or otherwise any intentions. Your best course of action is to discuss the issue with your partners children and try and make an agreement that you remain at the property as long as you wish before they inherit anything.

If you find the supporting documentation you may have a professional negligence claim as I mentioned but you would need to go through the Solicitors Regulation Authority to deal with that. The firm even if they are no longer in existence will have had run off indemnity insurance to cover any issues.

At the end of the day your children are still in the property too so it would be difficult for your partner's children to force a sale to realise their share even if they wanted to. Of course discussing with them and reaching an agreement would be by far the best option.

[Darren1975]

Thanks everyone for your support and guidance, I have so much on my plate to deal at the moment and iam missing my partner so much ,and feel I have let my children down.
I have requested a file from the SRA and they do have a document that states we circled for joint tenants on the original correspondance form with both our signatures, but the original 2013 conveyancing solicitor still registered us as tenants in common, and the 2018 remortgage solicitor has just followed suit even though iam sure we told him we wanted to be registered as joint tenants. the forms to apply for the letters of administration are going to be signed this week, what can be done?

[Peridot]

Hi Darren1975,
You haven't let anyone down. Have you contacted the HM Land Registry and explained the situation. They would need to see the signed form from the 2018 remortgage?
Have you discussed the situation with the older children yet?

[Darren1975]

Hi Peridot, I have now have the conveyancing files from the SRA archives for the original 2013 conveyancing and annoyingly there is a letter from the land registry to stirling law stating that they had not got any information regarding registering as joint tenants or tenants in common, from stirling law and they gave stirling law a month to return the form myself and my partner signed or they would register us as tenants in common, it looks like stirling law never sent this on to the land registry as I did phone and ask the land registry and they said they don't have any signed form regarding joint tenents.
I have not asked for the 2018 files from the latest solicitor as I think this may better be requested by a solicitor than myself.

to add to my woes the decreasing term mortgage protection policy I took out on my late partner is also going into probate because we were not married and we did not have it in trust to myself,even though I set it up as part of our original mortgage requirements and i pay the premiums out of my account.

yes I have spoke to the children and it looks like one of them has changed their mind and another is now asking for more protection on the property for their future inheritance, I so don't want this issue to cause any family rifts because this is not what my partner would of wanted, but in all honesty the stress iam currently feeling is overwhelming right now iam struggling to think straight, but keeping a bright and happy face on things for my kids sake.
the letters of administration have now being applied for.
any advice is welcome right now as I really don't know which way to turn.

[Peridot]

Hi Darren1975,
From the sounds of it you may have an opening but I would recommend getting some face to face advice on this I'm afraid. Along with everything else you're dealing with probably not what you need to hear. Even if your partner's estate passes to your her children you can enter into agreement's with them that it won't be sold until such time as you are ready to move when the children are older, for example. You can probably appreciate that they want to protect some part of their inheritance after losing their mum but if an arrangement can be made as to when they would get the inheritance that would give more certainty for all of you.
As far as the life policy is concerned again you will need to speak to your partner's children about this. Maybe if they retain their share of the property they would agree to the mortgage being paid off with the policy? It is a negotiation process if you are unable to argue that the property should have passed automatically to you if the joint tenancy had been put in place as you had asked at the outset.
I would request the 2018 file too bearing in mind a solicitor asking will cost you and you are entitled to your file. You would then have all the details you need to get some face to face advice rather than having an appointment and then having to wait while the file was obtained.
If it became necessary to make a claim against the estate, although I'm not saying this would be the right course to take, you only have 6 mths from the date Probate is granted to do so.
Keep communication open with the older children and see what they are thinking. I appreciate it is difficult with the worry of everything but reaching agreements is far easier than fighting with them. If you are able to show the solicitor's were negligent then maybe the discussion should be how the estate is dealt with on your death to show that they will receive something in the longer term?