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.
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 ?
yes it is unfortunate but thanks for your lengthy answer here for me.
i will rate you.
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