Messy probate situation with children fighting with stepmother!

Yorkshireman99

carled wrote: »

You're starting to make yourself look a bit daft now. If you can't be bothered to read the information supplied and are determined to keep soldiering on in the wrong direction entirely then feel free to keep going, but don't be surprised that no-one is responding to you when you are so spectacularly mistaken in what you think is the position. You have already been corrected on this once by another poster and yet you still have W's status completely wrong!

I have re-read the two threads and the information given has been both selective and sometimes contradictory. If you are saying W is not a life tenant I apologise for saying so. Nevertheless as antrobus said there has been a clear breach of trust as an executor by your mother. That is why she was removed as executor by the court. However much you may complain those two facts seem inescapable. As I effectively said before the sensible thing for all concerned would be to engage in some sensible, adult, discussion on how to extricate the family from the mess they have got themselves into. Even at this late stage some constructive professional mediation might limit the amount of further family funds being squandered on litigation. If you genuinely want a solution then this is the way forward. In fact if you refuse to mediate the court will take a very dim view of your attitude. Don't waste the opportunity!

SevenOfNine

Yorkshireman99 wrote: »

It would be interesting to know how the bank allowed the funds to be spent without seeing the original copy of the will.

W moved funds to a 'holding account', this was most likely an account opened in her name but W 'ringfenced' it to contain only what OP referred to as "estate funds", (been there, done that!).

Anyone who has dealt with the estate of a deceased person will know how easy it is to freeze, close & remove funds from an individuals bank account if you have the death certificate.

Each financial organisation has it's own £££ limits for this of course, for Santander it is £20k for Barclays it was the same amount (but 3 years ago so may have changed). NO questions asked about Wills or Probate. Just the death certificate & a form stuck under your nose with the words 'sign here' uttered.........it's an indemnity form protecting the bank.

Once in an account in W's name, the bank don't need to answer to anyone for allowing her to spend it. It would only be odd if W was able to draw much larger amounts from D's sole a/c's pre Probate/Grant.

Yorkshireman99

SevenOfNine wrote: »

W moved funds to a 'holding account', this was most likely an account opened in her name but W 'ringfenced' it to contain only what OP referred to as "estate funds", (been there, done that!).

Anyone who has dealt with the estate of a deceased person will know how easy it is to freeze, close & remove funds from an individuals bank account if you have the death certificate.

Each financial organisation has it's own £££ limits for this of course, for Santander it is £20k for Barclays it was the same amount (but 3 years ago so may have changed). NO questions asked about Wills or Probate. Just the death certificate & a form stuck under your nose with the words 'sign here' uttered.........it's an indemnity form protecting the bank.

Once in an account in W's name, the bank don't need to answer to anyone for allowing her to spend it. It would only be odd if W was able to draw much larger amounts from D's sole a/c's pre Probate/Grant.

Noted. The banks protect themselves by getting an indemnity which means that they can wash their hands of any responsibility to their former customers. In fact if the true claimant successfully takes action against the bank then the bank will seek to reclaim it from the person who gave the indemnity. It would be more equitable if the banks made some basic checks before allowing the unscrupulous, and misguided, to plunder deceased relative's accounts.

securityguy

Yorkshireman99 wrote: »

It would be more equitable if the banks made some basic checks before allowing the unscrupulous, and misguided, to plunder deceased relative's accounts.

What checks could they make, though? The only thing that unambiguously gives you the right to the money is probate. Any checks the bank made would actually increase, rather than decrease, their liability, because they would be purporting to distinguish between good and bad title to the money. Suppose the banks did some checks, unspecified, and gave claimant A the money, and claimant B later secures rights on it via probate. A could reasonably argue that as the bank approved the transaction, they were acting as her advisor and owed her a duty of care. The current situation is at least more realistic: "you want it, you have it, up to you".

Yorkshireman99

securityguy wrote: »

What checks could they make, though? The only thing that unambiguously gives you the right to the money is probate. Any checks the bank made would actually increase, rather than decrease, their liability, because they would be purporting to distinguish between good and bad title to the money. Suppose the banks did some checks, unspecified, and gave claimant A the money, and claimant B later secures rights on it via probate. A could reasonably argue that as the bank approved the transaction, they were acting as her advisor and owed her a duty of care. The current situation is at least more realistic: "you want it, you have it, up to you".

A simple check would be sight of the original copy of the will and ID check that the applicant is the executor. Banks will usually release funds direct to an undertaker for funeral expenses. The bank would then be able to prove they had acted with reasonable care so would not be guilty of negligence. The current system is wide open. Anyone can obtain a copy of a death certificate.

Mojisola

Yorkshireman99 wrote: »

A simple check would be sight of the original copy of the will and ID check that the applicant is the executor.

When I closed Dad's PO account, I had to show the death certificate and the will and my ID, even though the staff had known Dad and me for years.

If they can require those checks, I don't see why the banks can't.

marcelli

I have the impression from the original judge's ruling, that he had to make the judgment he made because it was technically a breach of trust, but (a) a mistake is not proof of malicious intent, and (b) one mistake does not necessarily lead to another.

getmore4less

marcelli wrote: »

I have the impression from the original judge's ruling, that he had to make the judgment he made because it was technically a breach of trust, but (a) a mistake is not proof of malicious intent, and (b) one mistake does not necessarily lead to another.

who know what happened in the courts neither W or OP Were there and I don't think they have read the transcripts so anything reported is second or third hand via solicitor that failed to put up any defence by the look of it.

Technicality could quite possibly be W acted alone when there were other executors.
The funds probably should have passed through the will trust before being available for the DT(that's a paper exercise they do not have to move accounts).

The OP did report(somewhere) the judge ruled that they removed W due to the impasse.

carled

The immediate report we got from the solicitor was:
"You were removed as executor. The Judge didn't want any prolonging of the disputes between you and the other two. He said it didn't matter who was executor but you had done wrong and so by removing you a Probate could be obtained without further delay He urged you and the other side to talk about the remaining cash to save further erosion in legal costs".


The proposals W has made (both before this action and since) for mediation have been met with stony responses saying they are waiting for the current action to complete before doing anything else.

marcelli

D wanted to provide for them all. He was apparently advised that a DT would be a good way to go, as money could be invested and so increase. The house too, might on the face of it increase in value. (Both possibilities are now higly questionable in today's financial markets - ok, opinion on my part). He made W trustee of DT, as she is his widow and their relationship would dictate some more immediate responsibility towards her. Trusts all seem to rest on goodwill, but for whatever reason D1 and D2 it could be argued are not showing goodwill towards W.
The Will states who are Beneficiaries, presumably somwhere stated as equally if not so under the trust (not a good idea then for it to be discretionary). If the problem is loss of funds, surely it is sensible to resolve matters sooner by discussion, than later following more substantial financial loss incurred by legal action; any investment is subject to some sort of risk. I believe it is possible to "take a view" on trusts, even under a Will, and that would require agreement, and perhaps then either not set up the trust, or for one or more of them to take their third share as soon as it has been set up if they insist on its being set up, so that there are not more painful and drawn out arguments? Can W make enquiry of a Trust lawyer on this? I speak from some experience here.
The danger is now that a substantial part of the funds will be spent on legal action, relationships will deteriorate further, D1 and D2 want more say in the share of the DT funds (which goes against what D initially requested in the Wil), so will end up doing what they are accusing W of i.e taking more than their share at their own discretion.
I wish you all speedy delivery from all this anguish.