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Messy probate situation with children fighting with stepmother! - Page 4

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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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  • getmore4lessgetmore4less Forumite
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    W needs a better lawyer.

    They should have countered to have D1/2 removed as executors.

    Depending on the terms of the DT(which automatically comes into existence by the will) the moneys spent could well fall within the remit of the trustees.

    It is not clear how the house sits as within the DT the trustees would be the legal owners D1D2 would just have a beneficial interest.

    Or is there a separate interest in possession trust in place for the house.
  • carled wrote: »
    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!
    My comments have been based solely on the information given and my understanding of the law. I have no reason to be biased either way. Stripping out all the emotive language you use and trying to be as objective as possible you clearly believe W is the victim in this case. Introducing new arguments about people's behaviour you have not previously disclosed does not alter the facts you have stated. Anyone accepting the task of being an executor has a crystal clear obligation to establish what the obligations of the post are. There really is no wriggle room about that. Likewise W must have known that she had no authority to buy oil for herself using estate funds. Now you have said she is trying to sell property she does not own. From what you have said it is very difficult to believe that she is as innocent as you claim. She has directly benefited form the use of the heating oil and indirectly from the repairs. As I said before she seems to think, and you support her view, that she can do just as she pleases with no regard for the law. It really is not surprising that the other parties have taken exception to this.
  • carledcarled Forumite
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    Yorkshireman, thank you for your time but please desist from commenting on this thread any further. After some googling I am aware of your past and to me, you're nothing other than a contrarian (also known as a troll, of course).

    So I'm now wondering about a possible technicality here. W's solicitor has said that, due to her spending estate funds, she has "intermeddled" with the estate and has caused the discretionary trust to arise already, even before probate. She has effectively acted as a trustee which is why the other side are making noises about removing her as such.

    However... As the only other trustee (F) has now resigned and made it clear at the outset (at D's funeral) that he was not prepared to act in the estate or thereafter and was therefore renouncing his position, this only leaves one trustee (that was willing to act).

    If there was only one trustee (W) and W was acting as a trustee when spending the funds, logically doesn't W therefore have the required authority to do what she did? There is no restraint on the DT at all so it's not like she went against the wishes of D in what she did, technically.

    I dare say a barrister and expert in the subject may well be able to argue the case more "legally" but I'd have thought that if the argument is that she should have consulted with the trustees (bear in mind we're considering the position from the DT point of view, not from the executor point of view). If the law wants it that she caused the DT to arise early then as sole trustee she has a relatively free hand thereafter?
  • EasySolutionEasySolution Forumite
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    Three Points
    If W has a life interest in half the property and that half property ultimately will fall to D1 &D2 surely it is in their interests for money to be expended in the upkeep and fabric of a capital increasing asset.

    F is a genious.

    F was a very poor choice by D
  • getmore4lessgetmore4less Forumite
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    The trust(s)existed the day D died the will creates them.
    the intermeddling just established W as executor and trustee.

    The issue is there were supposed to be more executors.

    Because they can't agree it has gone to court and W got removed.
    W should have asked for the others to to be removed as well.

    The solicitor is saying things that seem about right but I would not be confident in their ability in front of a judge next time.

    D1/2 seem to have won round 1 and if W does not beef up their case could lose the next ones.

    The winners here are the legal teams, D1/2 team probably deliberately left things open/dangling re the trust to get another shot at the funds.
  • carled wrote: »
    Yorkshireman, thank you for your time but please desist from commenting on this thread any further. After some googling I am aware of your past and to me, you're nothing other than a contrarian (also known as a troll, of course).

    So I'm now wondering about a possible technicality here. W's solicitor has said that, due to her spending estate funds, she has "intermeddled" with the estate and has caused the discretionary trust to arise already, even before probate. She has effectively acted as a trustee which is why the other side are making noises about removing her as such.

    However... As the only other trustee (F) has now resigned and made it clear at the outset (at D's funeral) that he was not prepared to act in the estate or thereafter and was therefore renouncing his position, this only leaves one trustee (that was willing to act).

    If there was only one trustee (W) and W was acting as a trustee when spending the funds, logically doesn't W therefore have the required authority to do what she did? There is no restraint on the DT at all so it's not like she went against the wishes of D in what she did, technically.

    I dare say a barrister and expert in the subject may well be able to argue the case more "legally" but I'd have thought that if the argument is that she should have consulted with the trustees (bear in mind we're considering the position from the DT point of view, not from the executor point of view). If the law wants it that she caused the DT to arise early then as sole trustee she has a relatively free hand thereafter?
    I am certainly not, nor have I ever been a troll. Your suggestion that I am is offensive, and a breach of the conditions of this forum. Your problem is that you simply don't like the harsh reality of the replies given. You have not grasped the point that a trustee has to act solely for the benefit of the trust and not for themself. That is an absolute requirement of any trustee. Clearly W breached that trust by spending money for her own benefit i.e the heating oil.
  • carledcarled Forumite
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    I am certainly not, nor have I ever been a troll. Your suggestion that I am is offensive, and a breach of the conditions of this forum. Your problem is that you simply don't like the harsh reality of the replies given. You have not grasped the point that a trustee has to act solely for the benefit of the trust and not for themself. That is an absolute requirement of any trustee. Clearly W breached that trust by spending money for her own benefit i.e the heating oil.

    I will answer you one more time before ignoring you completely. Your assertion that "a trustee has to act solely for the benefit of the trust and not for themself" is poppycock for discretionary trusts at least.

    Read this:
    Under a discretionary trust, the beneficiaries have no entitlement to either income or capital. The Trustees have complete discretion as to whether or not to make payments of income or capital and to which beneficiaries.

    The Settlor of the Trust may have left a ‘letter of wishes’ outlining the purpose of the Trust and how they envisage the trust fund being dealt with. Such a letter is not legally binding on the Trustees, but they would generally try to take such wishes into account, circumstances permitting.

    Trustees of a discretionary trust should consider the needs of the beneficiaries on a regular basis and keep records of their decisions. Although they must be impartial (in that they must consider the circumstances and claims of all possible beneficiaries) they can still decide to give more to one beneficiary than another (or in fact decide not to make any distribution at all).


    Now, even though you may not like the facts, they are so: No named beneficiary has a right to inherit. The trustees can decide to give more to one beneficiary than another. The trustees can decide what, where, when and how to spend the money.

    Got all that? Let's move on. Using the fingers of one hand, count up how many trustees there are in this case. Now let's imagine a hypothetical situation in which one of the named discretionary beneficiaries is in need of immediate funds for heating oil in winter. Hmm, let's put it before the trustees to see if their discretion allows us to let that person have the money from the fund shall we? Passed unanimously? Great!

    I freely admit that this is paraphrasing what happened somewhat, but it's technically arguable.

    I have no further interest in your opinions on this thread as you're clearly not as informed on the subject as you believe and you'd like others to believe.
  • getmore4lessgetmore4less Forumite
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    You have worked out Y99 is aka G6?
  • SomersetSomerset Forumite
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    carled wrote: »
    I will answer you one more time before ignoring you completely.

    I have no further interest in your opinions on this thread as you're clearly not as informed on the subject as you believe and you'd like others to believe.


    You are offensive. You started this thread with an unbiased :
    carled wrote: »
    even if you agree with W's solicitor! I'm too close to the action to view it objectively.

    You are absolutely biased. You will accept no comments other than those that confirm your own bias.

    Fact : W has been removed as executor. Basis W did misappropriate estate funds.

    Next Step :
    carled wrote: »
    W's solicitor is convinced that D1 & D2 will now apply to have W removed as a trustee as they failed to do so explicitly last time. He feels that they will almost certainly succeed because of what W did with the estate funds.

    Absolutely spot on.

    You already stated ''as it's a discretionary trust, no beneficiary has a right to benefit, so in theory W could decide to keep all the money for herself and D1 & D2 would have no grounds for complaint.'' You then threw in the nugget of W proposing to sell part of the garden without informing or seeking consent from D1/D2.

    W wants total control of the DT. W spends estate money on W's wants. W is taking crap advice from 'friends'. W loses round one in court and 'friends' post on a public internet forum expressing amazement. W was wrong, to paraphrase you ''got that'' ? W will not control the DT if D1/D2 (as they fortunately seem capable of/flush enough to litigate) seek to remove her as trustee, to paraphrase you ''got that'' ?

    You are trolling, not Yorkshireman99. Don't post for opinions if you can't handle them. You are going to cost W an arm and a leg.

    Only post from me whether you insult me or not.

    Have a nice day :)
  • edited 30 May 2016 at 2:42PM
    SevenOfNineSevenOfNine Forumite
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    edited 30 May 2016 at 2:42PM
    You have worked out Y99 is aka G6?

    Yes, switched in September last year I believe. Name changed, style remained the same. :beer:

    Somerset - OP has tried to explain the workings of a DT. Your response demonstrates that he/she needed to.

    The trust kicked in as soon as D died, W jumped the gun somewhat by spending before she had properly established the trust, but what W spent it on had she done that properly would be up to her (& F if he hadn't jumped ship). DT's allow spending decisions to be made by the trustee/s, to benefit one, two, all or none of the potential beneficiaries. They don't necessarily stipulate EXACTLY what it must be spent on, therefore the oil & maintenance was quite likely within the remit of the trust.

    The BEST advisor for DT's sadly left the boards some time ago, that was SeniorSam, a retired financial adviser who did not allow his responses to forget this is DEATHS, FUNERALS & PROBATE forum. Sometimes a bit of sensitivity is required & has been sadly lacking for a while now as the forum becomes too narrowly dominated.
    Seen it all, done it all, can't remember most of it.
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