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Hello. My mother has died. 17 years ago when she purchased

Resolved Question:

Hello.

My mother has died. 17 years ago when she purchased her house, she instructed her Solicitor to put her house in Trust. Her Solicitor drew up a Declaration of Trust. My mum, her partner signed it. The Solicitor signed, witnessed and stamped the Declaration.
My mum then took the Declaration away and stored it at home.
She did not lodge the original or a copy with her house deeds at her bank.
The Solicitor who drew up the Declaration did not take a copy of the signed declaration before my mother left his office.

My mum's partner has lost the Declaration.

Visiting the Solicitor today, all he is able to produce is a printout of the draft wording from his computer but of course this is not signed or witnessed by anyone.

So my question is -

When a Solicitor draws up a Declaration of Trust to put a house in Trust, was he legally bound to make a copy of the signed and witnessed Declaration and hold it in a Trust file in his office or on his computer before my mother left his office 17 years ago - has he been professionally negligent by not doing this ?
Submitted: 1 year ago via InBrief.
Category: UK Law
Expert:  Thomas replied 1 year ago.
Hi

Thanks for your patience.

I would say not.

If the solicitor was instructed by your mother to retain the original of the Declaration and then they could not now locate this then it would be a clear case of negligence.

However, by taking custody of the original Declaration your mother has effectively taken responsibility to retain the document in order to prove it’s existence.

Generally, I would still expect a solicitor to take a copy of the executed Deed if it were executed at their offices or witnessed by them simply as a matter of 100% best practice but given that he was instructed to prepare the declaration for her and he did this then I would not be confident in now not having a copy of the executed Declaration being clear negligence.

IN actual fact he would presumably have stored any copy taken on your mother’s file and solicitors are only duty bound to hold the file for 6 years from the date of completion.

Although falling short of negligence I imagine the solicitor would probably be quite keen to assist in dealing with sorting out any dispute and so you should ask him if he is able to confirm the draft version is the one that was actually executed and take it from there in resolving the dispute.

I would ask for a copy of the client care letter from the file though. If this says as part of the instructions that he will take and retain a copy of the declaration then the case for negligence would be stronger.
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Kind regards,


Tom
Customer: replied 1 year ago.

Hi Tom,


 


Thanks for your reply.


 


This Declaration of Trust is very important.


My mother's will states that the house cannot be sold until her partner dies.


But the Declaration states that if one of the Executors of the will wants to sell the house now, then it overrides the will and can be sold now.


 


If the Solicitor had a signed and witnessed copy of this Declaration, then it would be straightforward and 100% enforceable through the court as her partner is contesting it and wants to stay in the house.


 


But with only a copy of the declaration unsigned, yes the solicitor is willing to swear in court that it was signed in front of him by both my mum and her partner but his word isn't 100% enough guarantee that the court will overturn the will and allow the house to be sold now.


 


This Declaration of Trust is as important as the will itself.


I cannot image when a will company writes a will, they would allow you to just take the only copy home.


They as a matter of practice would make and keep a copy on their files or computer in case the one at home gets lost - which is understandable.


 


So due to the importance of this Declaration and the Solicitor has a duty of care to my mother - she's relying on this now she's died - are Solicitor's when drafting a Declaration of Trust, legally bound by law to make and keep a copy ?


 


I await your reply please Tom.


 


Regards


David.

Expert:  Thomas replied 1 year ago.
Hi,

Solicitors will be negligent if they have not carried out the instructions of the client.

If the instructions were to draft a Declaration of Trust and execute it with the client then I would say that they are not negligent.

If the instructions were to draft/execute the declaration of trust and also take/retain a copy then I would say that they were negligent.

The Will, Declaration of Trust or any deed executed with a solicitor remains the property of the person executing it. They can do with it as they wish. A solicitor might suggest or advise that they leave the original with them but they have absolutely no power whatsoever to compel them to do so.

The solicitor would argue that the duty of care was discharged under their instructions when they drafted the declaration in accordance with those instructions, ensured that it was executed correctly and then gave the Declaration to the client when they said that they wished to retain it.

Please remember to rate my answer.

Tom
Customer: replied 1 year ago.


Hi Tom,


 


Thanks for this info and I understand what you are saying here.


 


The thing is, the Solicitor has destroyed the file after 6 years so my mothers instructions at the time sadly destroyed with it.


 


My mothers partner is denying having ever seen the Declaration and to be fair, I only have the Solicitor's word that my mothers instructions were that she'd take the Declaration and did not ask him to retain a copy on the file.


 


This all happened 17 years ago. My mother never used the Solicitor again for anything and she was not personally known to him.


 


It seems amazing to me that he can suddenly remember that her instructions 17 years ago was to take the only copy away - unlikely he'd remember one client telling him that ?


He has no file notes to go now as they were destroyed 11 years ago - so how can he show that these were my mothers instructions ?


Obviously telling me this is the easiest way out for him if he destroyed a copy by mistake.


I agree with your earlier view that it would normally be 100% standard practice to take a copy for his file, especially for something as important as this.


 


Plus he has kept an unsigned copy for 17 years on his computer because he realised the importance of this Declaration.


 


Therefore, could not show balance of probability applies here -


 


Could I not show that It's more likely than not that he did take a copy of the signed Declaration, placed it onto the Trust file, then destroyed it all after 6 years without scanning and keeping a copy on his computer.


Also, why would he make up a Trust file, if he was not going to have a copy of the Declaration to go in it ?


 


Could you not argue these points here to show that he probably did have a copy and is negligent by destroying it without transferring it to his computer ?


 


Kind Regards


David.

Expert:  Thomas replied 1 year ago.
Hi,

You say that he is able to produce a copy of the draft wording so I assume he either retained an element of the file or had it saved on his computer. So, it seems he can speak to the facts of the case notwithstanding that he does not hold a copy of the executed declaration.

I honestly think that the argument you have made in your most recent post for negligence contains a few too many assumptions and implications. Ultimately, if he was instructed to draft/execute the declaration then he has done this and discharged his duty by passing the declaration to your mother. Clients are taken to be able to look after their own affairs and retain their own documentation and so to hold the solicitor negligent and liable because your mother was not able to do this would be unreasonable in my view.

It's incredibly unfortunate I have to say but it's neither here nor there as far as the solicitors is concerned.

I am sorry.



Please rate my answer.

Kind regards,


Tom

Thomas, Lawyer
Category: UK Law
Satisfied Customers: 6387
Experience: BA (Hons), PgDip, Practising Solicitor
Thomas and other UK Law Specialists are ready to help you
Customer: replied 1 year ago.

ok tom.


 


yes it is unfortunate but thanks for your lengthy answer here for me.


 


i will rate you.


 


kind regards


david.

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