Ownership of property has passed to estranged husband contrary to the will

[RogPJ]

My Mother-in-Law was estranged from her husband for over 20 years and had no contact with him. She dictated in her will that her wishes were for her half of their jointly-owned home should go to her only child, my wife. I paid for a solicitor to ensure that this would happen and a will was written up in 2012 and kept safe until her death late last year.

Unfortunately we have now found that the ownership of the property was as 'joint tenants' and not 'tenants in common', so the whole ownership of the property has passed to my Father-in-Law despite my Mother-in-Law's explicit instructions to the solicitor. Unfortunately my Father-in-Law has mental health issues and he makes very unwise decisions, which lead to him having legal issues (CCJs etc) and getting into debt (bailiffs etc). He is now doing the same with the house he has inherited and we are looking for some advice as he is also letting someone live there for free in exchange for them 'looking after the place' and we are worried about adverse possession.

Is there any way to protect the property against adverse possession, or to stop Father-in-Law giving it away to this woman who's living there?
Can we sue the original solicitor? They conveniently have no notes from the meeting in 2012 and will not discuss the issue with me as the original solicitor has retired. Would this prove cost effective?

Thanks in advance.

[PallasAthena]

Do you have written records, correspondence from the solicitors confirming your 2012 instructions?

On the face of it failing to ensure the property was held as tenants in common would seem like a serious failing by the solicitor.

But it is possible to change from TIC to JT, it's fairly straightforward. It would of course have required both your MiL and FiL to give theri written consent. Might that have happened after the Will was written? Have you checked what the Land Registry entry shows for when it became a JT?

[atticus]

I need to correct PallasAthena slightly: the consent of both/all parties is NOT necessary to sever joint tenancy and convert it into tenancy in common. It is surprising that the solicitor who prepared the will did not check this.

[atticus]

To the OP: if the title is registered, adverse possession should not become an issue.

[PallasAthena]

I need to correct PallasAthena slightly: the consent of both/all parties is NOT necessary to sever joint tenancy and convert it into tenancy in common.

I was referring to the change in the opposite direction, TIC to JT, which appears to be what might have happened here. I thought that did need the consent of both co-owners, but happy to be corrected if I have misunderstood it.

[Pezza54]

Can OP post the wording in the will regarding his M.I.L.'s wishes regarding her 50% share of the property with names redacted.

It is possible that the will made provision for F.I.L.to carry on living in the house until his death.

[Pezza54]

If it transpires that the solicitor was negligent by failing to check the whether property was owned as tenants in common when drafting the will in 2012, you have 3 years from the time of discovery of the negligence to make a claim.

There are solicitors that specialise in making professional negligence claims against solicitors and will provide initial free advice.

Hopefully the solicitor, if found negligent, has professional negligence insurance as the claim could be big.

[Pezza54]

Sorry "whether the" not "the whether". It's getting past my bedtime.

[RogPJ]

If it transpires that the solicitor was negligent by failing to check the whether property was owned as tenants in common when drafting the will in 2012, you have 3 years from the time of discovery of the negligence to make a claim.

There are solicitors that specialise in making professional negligence claims against solicitors and will provide initial free advice.

Hopefully the solicitor, if found negligent, has professional negligence insurance as the claim could be big.

Thanks very much for the useful info, it's much appreciated. The solicitor who did the will (and held the paper deeds to the property) has now retired and all documentation has been handed over to a different firm who handled the estate and probate. It was the solicitor at the new firm who suggested we should sue the original firm for negligence as he was shocked that the ownership wasn't updated, especially as FinL is estranged and has been living overseas with another woman for over 20 years. The issue we have is that due to FinL's mental health issues it is quite likely that he will give the property away to someone as he's done this with assets in the past (always women and always in exchange for 'friendship'). The woman who's living in the property now is saying that it's now her house and she's busy doing it up. If my wife had a half ownership of the property it would stop him giving away the whole house.

Do you know of any solicitors who specialise in professional negligence claims? I did a search and found some, but the first two I tried wanted an upfront payment for an initial consultation.

[RogPJ]

Can OP post the wording in the will regarding his M.I.L.'s wishes regarding her 50% share of the property with names redacted.

It is possible that the will made provision for F.I.L.to carry on living in the house until his death.

This is the verbatim extract from the Will:

-------------
Distribution of Estate
I gift all my estate not otherwise disposed of by my Will to my executors to use it to pay my debts, legacies, funeral and testamentary expenses and to any legacies declared earlier and all tax payable in respect of my estate, and to divide my residuary estate among the following in the shares specified.

My daughter xxxx xxxx 100%

Deliberate Exclusions
After careful consideration, I have intentionally excluded my husband xxxx xxxx from the provisions of my Will and this is not an oversight.
--------------

FinL hasn't lived in the house for over 20 years as he lives overseas with another woman. I explained the situation to the original solicitor ahead of the meeting in 2012. FinL has no intention in moving back to the UK so he will happily let the house go to this new woman who has moved in, just as long as he can pop in for some 'friendship' and use it as a base when he's visiting the UK. This is what he's done twice before and both times he lost the properties, which is why we're keen to try and stop him losing this one!

[RogPJ]

I was referring to the change in the opposite direction, TIC to JT, which appears to be what might have happened here. I thought that did need the consent of both co-owners, but happy to be corrected if I have misunderstood it.

We were also advised that MinL could have changed ownership without requiring FinL to sign anything. If that had happened then we wouldn't be in the predicament we're in now, which is why I'm so annoyed that the original solicitor didn't advise MinL to change the ownership so that her half would go to my wife as per her instructions in the Will.

[Pezza54]

As half share in a property is a large asset I would have expected it to feature in the will, not be part of the residuary.
All you have at present is your word, unless you put the instructions to the solicitor in writing (and still have a copy) that you wanted MiL's half share of the house to pass to your wife.
Unless you have instructions in writing about the property and as the solicitor has retired and any notes of your meeting have been lost, your claim for professional negligence is likely to fail

[atticus]

I think pezza is being somewhat pessimistic. The terms of the will that was prepared may well give sufficient pointers.

Your solicitor thinks there may be grounds to bring a claim. Contact the Law Society for suggestions of suitable law firms in your area.

[Pezza54]

Wilson Browne Solicitors have an informative article on their website re suing a solicitor for professional negligence. Their website states they offer a free 30 minute phone consultation.

[RogPJ]

Wilson Browne Solicitors have an informative article on their website re suing a solicitor for professional negligence. Their website states they offer a free 30 minute phone consultation.

Thanks, I'm going to send them a message today to see what they say.