In this series, we explore real-life examples that our lawyers have encountered where failing to seek solicitor advice has caused clients all manner of problems. Along the way there are useful ‘takeaways’ to help you avoid making the same mistakes.
In this article, Private Client Services Partner Cara Grant (pictured) highlights some recent matters she has dealt with involving problems or potential problems with Wills.
Solicitor advice averts inheritance mishap
The client wanted to change the beneficiary for a property he owned. When Cara checked the title at the Land Registry, however, she discovered he co-owned the property with another person as ‘joint tenants’. This meant that changing his Will to alter the beneficiary would not work, as the interest would still pass to the surviving co-owner automatically.
Our client must now contact the co-owner, a former partner, to arrange to sever the joint tenancy so they become ‘tenants in common’. He will then be free to dispose of his share of the property through his Will.
Luckily, the client took the prudent step of contacting a specialist solicitor before changing his Will. If he had simply changed the Will without checking the title, his ex-partner (and not his intended beneficiary) would have stood to inherit his share of the property.
Wills and children from previous marriages
Second marriages where there are children from a previous marriage often require the inclusion of carefully drafted trust clauses in Wills.
Our client and her partner owned a property together. They agreed that when one of them died, the survivor would have the right to live in the property for the rest of their life. If they wanted to move, they would be free to use the entire sale proceeds to purchase a new property. The capital would be protected by a trust for their beneficiaries, who would inherit following the survivor’s death.
Several years after her partner’s death, our client decided to downsize and move into a flat. Unfortunately, she then discovered that her late partner’s Will – not made by us – only allowed her to use half her late partner’s share in the property towards her new purchase. The remaining half would be paid to her late partner’s children at this stage.
This left our client with financial difficulties. Due to the likely high costs of litigation and the associated risks, she had to negotiate a settlement with her step-children. They agreed that she would receive a small portion of the capital of her late partner’s share and the rest would pass to them.
If her partner’s Will had been properly drafted, our client could have moved home without financial worry, and the children would have inherited after her death, as the couple had planned.
Vague Will causes problems for daughter
Our client’s mother had provided in her Will for her surviving partner to occupy her flat for the rest of his life. After the partner’s death, our client would inherit the property. Unfortunately, however, the Will was extremely vague. It did not define what was meant by ‘occupation’ of the flat and it required the partner’s written consent before the flat could be sold.
Our client was concerned that the partner could default on maintenance and rental payments, lose mental capacity or refuse to consent to a sale. The Will should have included provisions that enabled our client to sell the flat if the partner defaulted or vacated. The matter remains unresolved, as the partner has no inclination to cooperate or engage a professional advisor.
If the Will had been properly drafted by an experienced solicitor, our client’s mother could have spared her daughter the frustration, legal costs and uncertainty of trying to rectify the matter.