What Can Be Done When a Solicitor Fails to Sever a Joint Tenancy When Makiing a Will Purporting to Dispose of It

25 November 2020 12:34 pm

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider what can be done when a solicitor making a will purporting to dispose of a property fails to sever joint tenancy of that property

What is the significance of severing the “joint tenancy” of a jointly owned property by reference to a Will disposing of it?

Please have a look at our previous blog about this issue which can render the terms of a Will in relation to a jointly owned property completely irrelevant:

https://www.willclaim.com/property-co-ownership-challenging-wills/

The problem is this; a jointly owned property whereby the joint owners have a form of joint ownership called a “joint tenancy” (which has nothing to do with rental property by the way) must “sever” the “joint tenancy” to ensure that their respective shares of that property fall into their estate(s) to be dealt with under the terms of their Will(s).

Otherwise what Will happen to the property?

It will automatically pass to the survivor of the joint owners regardless of the terms of any Will to the contrary. There is a very good government website explaining at:
https://www.gov.uk/joint-property-ownership/change-from-joint-tenants-to-tenants-in-common

What can be done where a solicitor preparing a Will fails to take this into account and doesn’t sever a “joint tenancy”?

We deal very briefly with this. A Solicitors duty of care to an intended beneficiary is well established, given the leading cases of Ross v Caunters (1980) Ch.297 (https://swarb.co.uk/ross-v-caunters-a-firm-chd-1979/) and of White v Jones (1995) 2 AC 207 (https://www.bailii.org/uk/cases/UKHL/1995/5.html). There is no doubt that this will include a beneficiary who has been “disappointed” because of a failure on the part of a Solicitor advising in relation to a Will to ensure that property intended to form part of an estate, falls to be determined by the Will, because of a failure to sever a Joint Tenancy. This was the finding of the Court of Appeal in Carr-Glynn v Frearsons (A Firm) EWCA Civ 1325 (29 July 1998)( https://www.bailii.org/ew/cases/EWCA/Civ/1998/1325.html). Lord Justice Chadwick providing the leading Judgment confirmed:

“In my view, a competent solicitor, acting reasonably, would have advised the testatrix that, in order to be sure that her testamentary wishes should have effect, she should serve a notice of severance in conjunction with the execution of the will…..I am satisfied that in failing to advise that a notice of severance ought to be served immediately she fell below the standard of care to be expected from a competent solicitor acting reasonably”.

Lord Justice Chadwick went on to confirm that severing the joint tenancy then formed part of the Will-making process (p7 of the Judgment):

“On a proper analysis, the service of a notice of severance was part of the will-making process”.

Finally, he said that the duty owed by the Solicitors preparing the Will was a duty to take care that effect is given to the testator’s testamentary intentions, which in this context is a duty to ensure that the property forms part of the estate so that it can pass to the proposed beneficiary(p8 of the Judgment):

“The duty owed by the solicitors to the testator is a duty to take care that effect is given to his testamentary intentions. That is the context in which the duty to take care to ensure that the relevant property forms part of the estate arises. The duty in relation to the relevant property is a duty to take care to ensure that that property forms part of the testator’s estate so that it can pass to the intended beneficiaries on his death. It is not in contemplation, in a case of this nature, that the testator will dispose of the property in his lifetime. The loss from which the testator and his estate are to be saved harmless is the loss which those interested in the estate (whether as creditors or as beneficiaries) will suffer if effect is not given to the testator’s testamentary intentions.

The duty owed by the solicitors to the specific legatee is not a duty to take care to ensure that the specific legatee receives his legacy. It, also, is a duty to take care to ensure that effect is given to the testator’s testamentary intentions. The loss from which the specific legatee is to be saved harmless is the loss which he will suffer if effect is not given to the testator’s testamentary intentions. That is the loss of the interest which he would have had as a beneficiary in an estate comprising the relevant property”.

So what can be done if the Solicitor fails to sever the joint tenancy as part of the Will-making process?

A claim for damages can be brought against the Solicitor in question in professional negligence.

If you consider any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.