Messy probate situation with children fighting with stepmother!
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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 ...
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.
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?
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.
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.
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.
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.
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).
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!