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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10086
Experience:  30 years as a practising solicitor.
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Can you please tell me when NOT INCLUDING a survivorship clause

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Can you please tell me when NOT INCLUDING a survivorship clause in a title deed to a flat became standard practice in Scotland.
Thank you for your question.

There is no such thing as standard practice. It is the duty of a competent solicitor to take specific instructions from his clients on whether the title is to be drafted to the survivor or not. It is generally the case that a survivorship clause is popular as between spouses and partners but it is not always so and the solicitor should always ask.

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Customer: replied 3 years ago.

The lawyer who drew up the title says she asked my parents at the time and they said no but I find this difficult to believe since they had made wills leaving everything to each other The lawyer has said there is no written record of this. When they bought the flat my father was 82 and my mother was 80 and had been married for 61 years. My father passed away in July 2011 and my mother is now is a care home. I had an offer on their flat but I lost the sale since the title deed had to be corrected and I need to sell the flat to pay for my mother's care.

I agree that is strange as it would require Confirmation to your father's estate whereas a survivorship clause would have avoided that The only possible reason could be to allow one share of the title to be transferred to a family member at some stage potentially to avoid nursing home fees. You would have to ask the lawyer specifically what the reason was not to put in a survivorship clause at the time.