Messy probate situation with children fighting with stepmother! 28 May 2016 at 9:44AM edited 30 November -1 at 1:00AM in Deaths, Funerals & Probate 100 replies 14.3K views

Tuesday_Tenor

carled wrote: »

The codicil was drafted by the same solicitors who did the will and only two months after the will was done. D1 & D2 knew nothing about it either.

In that case

It seems that the testator really did want the 4 executors but just F and W as the 2 trustees of the DT.

Or the the solicitors completely failed to understand/check what the testator wanted and so failed to word it correctly.

It would be hard to evidence the latter, but it would be possible to evidence the former if the solicitor kept notes of the meeting saying that trustees were to remain F and W only.

Rather moot point now, though ...

Tuesday_Tenor

Yorkshireman99 wrote: »

A reasonable executor would have taken advice before acting.

Would have been sensible, I agree.

Yorkshireman99 wrote: »

The fact that a judge removed her as executor strongly suggests that she was quite wrong in her actions.

Yes, and though we have a lot of information, we still might not have the full picture regarding how and what the she communicated in her frustration (thinking she was in the right) and confusion.

Yorkshireman99

Tuesday_Tenor wrote: »

But the authority to act as executor and trustee comes from the will.

W believed she was the sole executor and trustee once F resigned.

Probate is needed to prove to OTHERS that you are the person with the authority to act. W did not need to prove to herself or D1+D2 who she was! They all knew her and knew contents of the will! So until the appearance of the codicil, I'm not clear that she WAS abusing any trust as long as she was honouring any terms and conditions set on the DT.

Interesting. And I'm no lawyer, just saying things that occur to me as a lay person.

To me the fact that the judge removed her is very strong evidence indeed of W acting wrongly. The full authority to act as executor only comes once probate has been granted. Until then an executor needs to be very careful about making any payment other than for the funeral. If the will sets up a DT then again there is no authority to act before probate. In any case spending money that might have been the intention of the testator is no permitted. As for the heating oil that was straightforwards theft from the estate since W used this to suit herself. It is a crucial point that in any position of trust, such as being an executor, that the trustee must put the interests of the estate before their own. Clearly W chose to put her interests first. It really is no wonder the other parties are so upset about the whole matter.

SevenOfNine

Tuesday_Tenor wrote: »

In that case

It seems that the testator really did want the 4 executors but just F and W as the 2 trustees of the DT.

Or the the solicitors completely failed to understand/check what the testator wanted and so failed to word it correctly.

It would be hard to evidence the latter, but it would be possible to evidence the former if the solicitor kept notes of the meeting saying that trustees were to remain F and W only.

Rather moot point now, though ...

I agree, the codicil isn't necessarily incorrect. My DTW is written with 1 executor & 3 trustees so it's not all named participants get to wear the same hats. Perhaps D felt that D1 & D2 should help/be involved with the probate process but only wanted W & F to have control over the DT.......personally I can see why!

Pity F wants nothing to do with it, & even more of a pity W started spending before probate was granted. It's possible the best W can hope (or try to aim for) is to remain as trustee but agree to have a responsible 'other' appointed as well, if that's an option?

I'm surprised D put everything he owned into the DT. What has W got in her own right?

carled

Tuesday_Tenor wrote: »

Well, if D had instigated major work on the house and then died without leaving his widow any funds to pay the builder, and left her no funds to pay her winter heating, she was left in a difficult position. Any trustee of a discretionary trust who would refused such claims would, in my eyes, be most UNreasonable.

She was wrong to jump the gun and use funds before probate. She should have stalled the builders saying 'waiting for probate' , [tough on them] , .... ?and gone without heating??!!!?? .... And got on with applying for probate ASAP.

I do understand where W was coming from, though she was wrong not to get probate sorted first.
- No intention of defrauding estate, had all figures at date of death, will complete probate forms correctly
- believes she is now sole executor
- believes she is now sole trustee
- believes discretionary trust is intended for exactly such things
- knows there is no inheritance tax to pay (I'm assuming)
- thinks best to use the funds she believes she can grant to herself rather than unnecessarily troubling her children or getting into debt to pay builder and winter heating.

Misguided, but understandable.
And deemed wrongful action for an executor in a court of law.

Thanks. I really appreciate your considered input. Your viewpoint pretty much echoes mine and W's. She know (now) that she did wrong. At the time she was (understandably) in a bit of a mess and thought she had to do various things and also thought she was free to do other things. There won't be any tax implications, as you say and she knew that via the family financial adviser. It was only after a couple of weeks of trying to sort things out herself that she started getting overwhelmed and took legal advice. She realises that ignorance of the law is no excuse, but she resents the attitude of the other side in this battle (echoed by a few on here) that what she did was deliberate and damaging to the estate. Bear in mind that she is spouse, executor (or at least was), trustee and discretionary beneficiary, so it's not like your standard kind of separation of roles situation, there are definitely mitigating circumstances due to her intentions and what will be the outcome of distribution anyway, she just jumped the gun rather than took something that wasn't going to be hers in the end anyway.

carled

Yorkshireman99 wrote: »

The bottom line is that W was in a position of trust and spent funds that she had no right to spend. The law treats those who abuse the position of trust severely. The fact that the expenditure on the house was planned makes no difference. In fact until probate is granted an executor has very limited powers to spend money usually just the funeral costs. from what you have said W also spent money on fuel oil rather than paying for it herself. Even if W had the right to live in the house she would still be responsible for the outgoings. D1 & D2 are correct in saying she must pay the money back.

I don't think she disagrees with the principle you're applying at all, and neither do I. However in the circumstances where, as widow, she is going to get what she has had plus more anyway, then it's not quite the same as misappropriating funds that she wouldn't get in reality. Therefore demanding repayment becomes just a control mechanism and a way for them to score points and in the long term is pointless as it'll just end up back with her anyway.

carled

Yorkshireman99 wrote: »

As I read it the work on the house was planned but not actually contracted for. I just get the impression that it was much more than misguided. A reasonable executor would have taken advice before acting. The fact that a judge removed her as executor strongly suggests that she was quite wrong in her actions.

She was removed for wrongdoing, you're absolutely right. The judge referred to it as a "minor victory" for D1 & D2. He did, however, comment that part of the reason he was removing her was to unblock the clear impasse that was preventing probate and unnecessarily prolonging the management of the estate. The judge had sympathy for her actions but didn't look much beyond the black and white of it.

carled

Tuesday_Tenor wrote: »

But the authority to act as executor and trustee comes from the will.

W believed she was the sole executor and trustee once F resigned.

Probate is needed to prove to OTHERS that you are the person with the authority to act. W did not need to prove to herself or D1+D2 who she was! They all knew her and knew contents of the will! So until the appearance of the codicil, I'm not clear that she WAS abusing any trust as long as she was honouring any terms and conditions set on the DT.

Interesting. And I'm no lawyer, just saying things that occur to me as a lay person.

Well put. It's a shame the judge didn't have the inclination to look a bit further along this line. His point of view was that this was unnecessary squabbling and the quickest way to resolve it was to remove one of the sides from the equation. He chose the one that had committed the, albeit technical, misdeed.

Interestingly enough, when commenting on the attempt by the other side to amend the order to include removing her as a trustee, he shot down the barristers argument that she had abused the trustee position as well as the executor one and also stated that the application was only to remove her as an executor anyway. I would have thought that had he been that concerned about her actions, he would most likely have taken the opportunity to agree with the barrister at this point and removed her as trustee too.

carled

Tuesday_Tenor wrote: »

Would have been sensible, I agree.


Yes, and though we have a lot of information, we still might not have the full picture regarding how and what the she communicated in her frustration (thinking she was in the right) and confusion.

She wasn't at the directions hearing. Only the barrister for D1 & D2 and the solicitor for W. (We were advised that it probably wasn't worth the expense of a barrister by the solicitor - whether he was right or not, we'll never really know now.) She is massively frustrated by the way she is being treated (particularly by the other side's legal team) as though she is a moneygrabbing common criminal attempting to deprive the saintly D1 & D2 of their rightful inheritance. (ironically the deceased used to refer to D2 as a "scrounging little so and so" as she was always asking for him to give her some money for this, that and the other).

carled

Yorkshireman99 wrote: »

To me the fact that the judge removed her is very strong evidence indeed of W acting wrongly. The full authority to act as executor only comes once probate has been granted. Until then an executor needs to be very careful about making any payment other than for the funeral. If the will sets up a DT then again there is no authority to act before probate. In any case spending money that might have been the intention of the testator is no permitted. As for the heating oil that was straightforwards theft from the estate since W used this to suit herself. It is a crucial point that in any position of trust, such as being an executor, that the trustee must put the interests of the estate before their own. Clearly W chose to put her interests first. It really is no wonder the other parties are so upset about the whole matter.

This is verging on a bit of a polarised view here. Technically you're probably right. However as she was going to get that money in the end anyway, it's not quite the same thing as if, for example, a non-beneficiary executor had done the same thing!