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Messy probate situation with children fighting with stepmother!

edited 30 November -1 at 1:00AM in Deaths, Funerals & Probate
100 replies 14.1K views
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  • carledcarled Forumite
    143 posts
    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?

    W got nothing in her own right from the will other than the right to live in the house for the duration of her life (or until remarriage). He makes a vague reference to how his intentions are that the DT be used to provide the best possible return for his widow and to maintain as comfortable a lifestyle as is possible. The trustees of the DT are expressly forbidden from being able to sell the house to realise the value of "his half".
  • carled wrote: »
    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.
    I can't see that the judge had any option but to remove her as she had clearly broken the law. I don't think she realizes what a serious matter it is. He easily could have reported her to the police with a view to prosecution. under the circumstances she has got off very lightly. Asking for repayment is not "a control mechanism" as the law does not allow people to benefit from their wrongdoing in this way. The other executors have a good case to recover the money if need be by reducing what she otherwise gets from the estate. Some of the money may well come her way eventually but that does not in any way excuse her.
  • carled wrote: »
    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!
    AIUI W gets nothing but the right to live in the house. She may get something from the DT but it is not certain. However that is not really the point. W was in a position of trust and abused that position which is a very serious matter. Abuse of trust can often result in a prison sentence which seems to be forgotten by many people. Sorry if the facts hurt but that is the reality.
  • carledcarled Forumite
    143 posts
    I can't see that the judge had any option but to remove her as she had clearly broken the law. I don't think she realizes what a serious matter it is. He easily could have reported her to the police with a view to prosecution. under the circumstances she has got off very lightly. Asking for repayment is not "a control mechanism" as the law does not allow people to benefit from their wrongdoing in this way. The other executors have a good case to recover the money if need be by reducing what she otherwise gets from the estate. Some of the money may well come her way eventually but that does not in any way excuse her.

    As I said before, this is a polarised view. Fortunately the legal system in this country isn't entirely black and white and they are able to differentiate between, say, an elderly widow making genuine mistakes and a non-connected executor embezzling. Your interpretation, which of course you are entirely entitled to hold, is that both situations are exactly the same and clearly they are not.

    You know nothing about the family history and so are not in a position to comment on the control aspect of the demands for repayment either, sorry. If you could step away from your "black is black" stance for a moment you would be able to appreciate that there is, in english probate law, virtually zero chance that she will not inherit a considerable amount of the estate. therefore demanding someone pays back money that eventually will end up coming back anyway is just being contrary for the sake of it. It could easily be determined that the amount she had so far is part of her eventual share and held accordingly on account, rather than pettily demanding the repayment of money spent in good faith by the widow, not an unknown executor.

    In what way do you feel she is benefiting from her wrongdoing? She's not proposing that the amount spent so far is ignored in any way so your point is invalid.

    I appreciate your input - I invited comment and you're clearly willing to give it, but on internet forums there are those who are what I would call "contrarians" and I find them relatively easy to spot these days. Bu I do genuinely appreciate all points of view and yours is an interesting one if nothing else!
  • carledcarled Forumite
    143 posts
    AIUI W gets nothing but the right to live in the house. She may get something from the DT but it is not certain. However that is not really the point. W was in a position of trust and abused that position which is a very serious matter. Abuse of trust can often result in a prison sentence which seems to be forgotten by many people. Sorry if the facts hurt but that is the reality.

    At present she is the sole trustee of the DT. Unless that changes there is probably quite a large chance that she will get something from it, I'd say. Even if she didn't, you may want to look up case law on 1975 IHA claims where widows have not been provided for. There are many. Sorry if the facts hurt, etc. ;-)
  • edited 29 May 2016 at 10:27AM
    SevenOfNineSevenOfNine Forumite
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    edited 29 May 2016 at 10:27AM
    Sorry carled, I should have asked what does W have in her own right not from the Will, which you've already mentioned in much earlier posts: 50% of the house & a small pension (with the trust written as such to protect her right to remain living in the house, unless she remarries).

    What's done so far is done, & what 'punishment' could have been dished out is clear so it shouldn't be necessary to labour that further. W acted out of ignorance rather than fraudulent intent, I think that's fair to say. We must not forget that W was bereaved & F decided to jump ship.

    Are you SURE that D's Will does not state "my wife shall not be the sole trustee" anywhere.......because ours do. Just double check so W doesn't trip over it later when trying to defend her position as sole trustee.

    Though TBH I don't think she should, would be prudent perhaps to agree to relinquish the role in favour of a independent professionals, to be agreed upon, OR add either D1 or D2 in with one of those plus W, making 3 people. Though professionals administering a trust don't do it for nothing! At least then there would be someone representing both 'sides' of the potential trust beneficiaries & a neutral in the middle.

    D1 & D2 won't trust W one little bit further if quoting the trustees power to use trust assets for the benefit of one or more of the potential beneficiaries exclusive of the others. It just counts against W's judgement as a sole trustee.

    You've said initially W spent trust assets on "expensive planned maintenance arranged by D before his death". Was this 'maintenance' or home improvements? There will always be an element of payment from the trust to maintain the 50% house asset contained within it, but of course there will be limitations on that which won't include new bathroom, kitchen & the like & you did say "expensive".

    You've said D1 & D2 want W to repay the trust for that work (after having said W could keep it - that particular point might be best left now as the opportunity to raise it by W's lawyer may have been missed). W doesn't have the money to do so, but is there enough cash asset left in the trust to give D1 & D2 the same share each, so putting all 3 potential beneficiaries back on an even footing, while fairer trust management is put in place?

    I'm afraid it's far too simple & extremely common for things to turn ugly after a death. Greed rears it's ugly head all too soon, sadly.

    I don't think you quite trust W's lawyer, might be appropriate for the next step to get one you have more faith in to properly represent her - & attend to ensure that happens. Good luck.
    Seen it all, done it all, can't remember most of it.
  • carledcarled Forumite
    143 posts
    Sorry carled, I should have asked what does W have in her own right not from the Will, which you've already mentioned in much earlier posts: 50% of the house & a small pension (with the trust written as such to protect her right to remain living in the house, unless she remarries).

    What's done so far is done, & what 'punishment' could have been dished out is clear so it shouldn't be necessary to labour that further. W acted out of ignorance rather than fraudulent intent, I think that's fair to say. We must not forget that W was bereaved & F decided to jump ship.

    Are you SURE that D's Will does not state "my wife shall not be the sole trustee" anywhere.......because ours do. Just double check so W doesn't trip over it later when trying to defend her position as sole trustee.

    Though TBH I don't think she should, would be prudent perhaps to agree to relinquish the role in favour of a independent professionals, to be agreed upon, OR add either D1 or D2 in with one of those plus W, making 3 people. Though professionals administering a trust don't do it for nothing! At least then there would be someone representing both 'sides' of the potential trust beneficiaries & a neutral in the middle.

    D1 & D2 won't trust W one little bit further if quoting the trustees power to use trust assets for the benefit of one or more of the potential beneficiaries exclusive of the others. It just counts against W's judgement as a sole trustee.

    You've said initially W spent trust assets on "expensive planned maintenance arranged by D before his death". Was this 'maintenance' or home improvements? There will always be an element of payment from the trust to maintain the 50% house asset contained within it, but of course there will be limitations on that which won't include new bathroom, kitchen & the like & you did say "expensive".

    You've said D1 & D2 want W to repay the trust for that work (after having said W could keep it - that particular point might be best left now as the opportunity to raise it by W's lawyer may have been missed). W doesn't have the money to do so, but is there enough cash asset left in the trust to give D1 & D2 the same share each, so putting all 3 potential beneficiaries back on an even footing, while fairer trust management is put in place?

    I'm afraid it's far too simple & extremely common for things to turn ugly after a death. Greed rears it's ugly head all too soon, sadly.

    I don't think you quite trust W's lawyer, might be appropriate for the next step to get one you have more faith in to properly represent her - & attend to ensure that happens. Good luck.

    No restriction at all in the will about her being the sole trustee. All along we've just assumed that D1 & D2 were trustees too, but the wording is explicit in making them executors only. They have made representations in emails and in legal documents that certainly imply that they feel they are trustees, so I imagine now that the reality has been pointed out to them, they're feeling a bit nervous.

    I think W will be very wont to relinquish her role as trustee. Not that she wants to use the power to benefit herself financially, the main problem is that D1 & D2 are invading her life with regards to the house. They have, without reference to her, added themselves as interested parties to her own home insurance policy and also added themselves on the land registry document. There is apparently a declaration of trust that makes W & D tenants in common, although this was not updated onto the land registry (which had them as joint tenants). At some point many years ago, D set up the declaration of trust without explaining to W what it was. She was told to sign paperwork all the time without explanation as he controlled the finances so never had the implications explained.

    Anyhow, the problem now is that every little thing she may want to do to house or land she has to do with reference to them and they have already demonstrated their reluctance to leave her in peace. For example W was trying to sell off a small piece of virtual waste ground at the very back of the land to a neighbour as he wanted to expand his garden slightly. D1 & D2 got wind of this and simply refused to let her negotiate a sale. It's this element of control freakery she wants to get rid of, so she hopes to use her position as trustee to achieve a deal that removes their interest in the property other than on her death when they get their share. She wants them to have no interest, knowledge of what she's doing or control over it (she realises she has to keep the property in good order, of course) and wants to use the DT to negotiate that with them if possible. Her worst nightmare is them being able to control the DT and her havign to ask their permission if she wants to repair the fencing or get a handyman in to cut a tree branch off.

    The planned maintenance was a complete re-rendering of the property. It is an old house and had terrible damp (black walls, water running down them, cold, horrible, you name it) as it had been badly done back in the 70s. It was actually a health hazard and hardly an extravagance to get it done as it has cured the damp problem and made the house warmer and more pleasant to live in. The rendering company has written a letter stating it was highly necessary maintenance in order to keep the property in good order. If W had refused to do it, then D1 & D2 would next have stated she's not adhering to the will as she's not "keeping it in good order" so she can't win either way!

    W already proposed that D1 & D2 had the remaining 2/3 split between them but it was refused way back before the real evil legal stuff began. She'd still agree to that arrangement if they'd accept a rewriting of the will to remove their interest in the property other than their beneficial interest on W's death and that offer has been on the table for a while, but they have no interest in it. A mutual friend of both saw D1 & D2 at a function in the village not long ago at which the ongoing estate dispute was briefly raised. They both stated quite clearly that their intention is to get every penny they can away from W, basically, no matter what it takes. It's not pretty and I wish they could all just agree on something without continuing to erode what funds remain in relatively pointless legal wrangling.
  • poppystarpoppystar Forumite
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    I accept that it is emotionally charged when someone else becomes a part owner in the property you call home ..

    BUT it is NOT "control freakery" to not want someone to sell something or part of something that had been gifted to you by your parent.

    [Paint a wall yes - sell of part of the property NO]

    How would W have felt if D1 and D2 had been able to sell off any bits of the house and grounds they wanted when they wanted. The protection in a life interest must work both ways.

    Equally they are well within their rights to ensure that the Land Registry and insurance companies are aware of their interest.



    This type of ownership (tenants-in-common where one party has been bequeathed their share) is becoming more common and I see the way many of the, usually elderly, now part owners of their own homes are struggling with the change. I feel that many couples take the tenants-in-common route for money managing reasons without considering the emotional impact on the surviving partner even in cases where family relations are good.


    W needs to come to terms with this or any future legal confrontations will see her saying things like the control freakery comment that will not serve her well and may make people reluctant to give her sole trusteeship.

    I do understand her upset but she was party to the split of the house (severing the tenancy) and must now respect that.
  • carled wrote: »
    No restriction at all in the will about her being the sole trustee. All along we've just assumed that D1 & D2 were trustees too, but the wording is explicit in making them executors only. They have made representations in emails and in legal documents that certainly imply that they feel they are trustees, so I imagine now that the reality has been pointed out to them, they're feeling a bit nervous.

    I think W will be very wont to relinquish her role as trustee. Not that she wants to use the power to benefit herself financially, the main problem is that D1 & D2 are invading her life with regards to the house. They have, without reference to her, added themselves as interested parties to her own home insurance policy and also added themselves on the land registry document. There is apparently a declaration of trust that makes W & D tenants in common, although this was not updated onto the land registry (which had them as joint tenants). At some point many years ago, D set up the declaration of trust without explaining to W what it was. She was told to sign paperwork all the time without explanation as he controlled the finances so never had the implications explained.

    Anyhow, the problem now is that every little thing she may want to do to house or land she has to do with reference to them and they have already demonstrated their reluctance to leave her in peace. For example W was trying to sell off a small piece of virtual waste ground at the very back of the land to a neighbour as he wanted to expand his garden slightly. D1 & D2 got wind of this and simply refused to let her negotiate a sale. It's this element of control freakery she wants to get rid of, so she hopes to use her position as trustee to achieve a deal that removes their interest in the property other than on her death when they get their share. She wants them to have no interest, knowledge of what she's doing or control over it (she realises she has to keep the property in good order, of course) and wants to use the DT to negotiate that with them if possible. Her worst nightmare is them being able to control the DT and her havign to ask their permission if she wants to repair the fencing or get a handyman in to cut a tree branch off.

    The planned maintenance was a complete re-rendering of the property. It is an old house and had terrible damp (black walls, water running down them, cold, horrible, you name it) as it had been badly done back in the 70s. It was actually a health hazard and hardly an extravagance to get it done as it has cured the damp problem and made the house warmer and more pleasant to live in. The rendering company has written a letter stating it was highly necessary maintenance in order to keep the property in good order. If W had refused to do it, then D1 & D2 would next have stated she's not adhering to the will as she's not "keeping it in good order" so she can't win either way!

    W already proposed that D1 & D2 had the remaining 2/3 split between them but it was refused way back before the real evil legal stuff began. She'd still agree to that arrangement if they'd accept a rewriting of the will to remove their interest in the property other than their beneficial interest on W's death and that offer has been on the table for a while, but they have no interest in it. A mutual friend of both saw D1 & D2 at a function in the village not long ago at which the ongoing estate dispute was briefly raised. They both stated quite clearly that their intention is to get every penny they can away from W, basically, no matter what it takes. It's not pretty and I wish they could all just agree on something without continuing to erode what funds remain in relatively pointless legal wrangling.
    Am I correct in thinking that W only has a life interest under the will to live in the house subject to keeping it in good order and insuring it?
  • edited 29 May 2016 at 12:39PM
    Yorkshireman99Yorkshireman99 Forumite
    5.5K posts
    edited 29 May 2016 at 12:39PM
    poppystar wrote: »
    I accept that it is emotionally charged when someone else becomes a part owner in the property you call home ..

    BUT it is NOT "control freakery" to not want someone to sell something or part of something that had been gifted to you by your parent.

    [Paint a wall yes - sell of part of the property NO]

    How would W have felt if D1 and D2 had been able to sell off any bits of the house and grounds they wanted when they wanted. The protection in a life interest must work both ways.

    Equally they are well within their rights to ensure that the Land Registry and insurance companies are aware of their interest.



    This type of ownership (tenants-in-common where one party has been bequeathed their share) is becoming more common and I see the way many of the, usually elderly, now part owners of their own homes are struggling with the change. I feel that many couples take the tenants-in-common route for money managing reasons without considering the emotional impact on the surviving partner even in cases where family relations are good.


    W needs to come to terms with this or any future legal confrontations will see her saying things like the control freakery comment that will not serve her well and may make people reluctant to give her sole trusteeship.

    I do understand her upset but she was party to the split of the house (severing the tenancy) and must now respect that.
    Assuming the OP has not omitted any relevant facts it seems that W is simply unable to accept that the property is not hers. After spending money she was unauthorized to do and stealing funds to pay for the oil now she is attempting to sell off property she does not own. Are we really supposed to believe that she is innocent? It is little wonder the other parties are very unhappy. It really is very difficult to have any sympathy for her. The pejorative language used by the OP such as "control freakery" is quite inappropriate. The other parties are simply standing up for their legitimate rights. This sounds harsh but given the events it seems the only conclusion.
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