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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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  • antrobusantrobus Forumite
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    carled wrote: »
    ...Bear in mind that D1 & D2 have been actively preventing probate being applied for for almost a year by sitting on and refusing to release F's deed of renunciation as an executor. They have admitted they have done so as they knew that once probate was granted, they would be facing an IHA act claim that they knew would affect them adversely. All that time they were trying to find a way to get more control and did so in the end by some creative writing in their claim form to get W removed as an executor.....

    I can't see how W could have continued to act as executor and sued the estate under the IA 1975; it would be a major conflict of interest if she was both plaintiff and defendant in the same case. The fact that she was contemplating such a claim would simply be another good reason to have her removed as executor.
  • getmore4lessgetmore4less Forumite
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    From what has been said

    W is not a life tenant of the whole property

    They own 1/2 the property.

    The other legal owners appears to be the a trust and W is the sole trustee and therefore the legal owner of the other 1/2.
    (still not clear exactly how the house is held and if there is a separate interest in possession trust for the house)

    Unless the trust gives the future beneficiaries any control they don't have a say in the maintenance of the property.


    An interest in possession is a mechanism to stops other people getting access to their future beneficial interest before another.
  • getmore4lessgetmore4less Forumite
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    antrobus wrote: »
    I can't see how W could have continued to act as executor and sued the estate under the IA 1975; it would be a major conflict of interest if she was both plaintiff and defendant in the same case. The fact that she was contemplating such a claim would simply be another good reason to have her removed as executor.

    Surprisingly this is not he case.

    The role of executor in a claim the position is a neutral one so no conflict unless they fail to do their duties(like provide the court with a full inventory).
  • getmore4lessgetmore4less Forumite
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    One possible avenue to investigate a modification to the trust to give more options.

    If the current trust prevents a sale without the beneficial interest of the house share assenting to the D1/2 beneficiaries that may be enough to be considered insufficient provision claim.

    Rather than pursue absolute rights to more assets just more flexibility to utilize the assets during W lifetime.
  • carledcarled Forumite
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    It is also becoming clear that this property is totally unsuitable and rather than messing about the primary objective should be to move forward to sell it off and get something more suitable.
    I agree, but try getting an elderly (stubborn) widow to move out of her beloved home. It's not easy.
    Did no one bother to phone F and get them to send another one.
    He got a bit grumpy when asked and stated he'd done it once and had no intention of doing it again.
    It should never have got to W being removed leaving D1/2 there was an impasse all or none.


    I speculate F knew there were issues(D probably warned them) and kept out finding a plausible excuse( I moved) rather than tell the truth it's going to get messy leave me out of it.

    What would F have got from acting?
    if there was nothing then another reason to keep clear.
    F is on record as saying that discretionary beneficiaries should not also be trustees, let alone trustees and executors as that way madness lay. He suspected all along that this would happen, he says.
    Why did W not attend the court madness when you are about to have your executorship ripped from you and have no counter claim in to do the same.
    Quite simply, the solicitor told her not to bother and not to go to the expense of instructing a barrister.
  • edited 31 May 2016 at 12:00PM
    carledcarled Forumite
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    edited 31 May 2016 at 12:00PM
    From what has been said

    W is not a life tenant of the whole property

    They own 1/2 the property.

    The other legal owners appears to be the a trust and W is the sole trustee and therefore the legal owner of the other 1/2.
    (still not clear exactly how the house is held and if there is a separate interest in possession trust for the house)

    Unless the trust gives the future beneficiaries any control they don't have a say in the maintenance of the property.


    An interest in possession is a mechanism to stops other people getting access to their future beneficial interest before another.

    ^^^
    This is approximately it as we understand the position.

    It's really quite screwy. Fundamentally the remaining two executors may soon be in a position where they have to turn over the estate funds they've gathered and D's share of the house to the trustees - which is W alone.

    I don't think there's anything preventing W selling the house. She has a beneficial interest in half and a life interest in the other half as things stand. There is provision in the will for her to sell the property and use her life interest in the half that is not "hers" to buy a new property, which is then subject to the same provisions.

    I don't think it's massively complex - or wasn't intended to be - but may now have been rendered more complex as there seems to be a conflict between the trust ownership of the property and the declaration of trust that established tenancy in common. I have no idea which of those situations takes legal precedence.

    W does not want to deprive D1 & D2 of their eventual inheritance of their father's share, but she does want to be in a position whereby she does not have to ask their permission for any modifications/expenditure/partial sale of land (which she just wants to split 50/50 with them). They just want the property sold and their "half" realised. The will prevents them enforcing that though, so they're having to sit on their hands. The will states the property has to be insured and maintained and this is something that the trust ought to be doing. As things stand, W has that control and maybe once D1 & D2 realise that, things will settle down.

    Edited to add: We've just had a note from solicitor on the above. The declaration of trust only comes into effect on sale of the property and not before, so is largely irrelevant for now.

    Any property/land that is sold, the proceeds go into the DT controlled by the trustees. The trustees can then decide how that money is split/invested/spent. Therefore if things don't change from where they currently are then W seems to already have what she needs in that she can decide what to do with any of the property (bearing in mind she holds the other half in trust on her own so can make decisions on her own about it) and does not need the consent or approval of the beneficiaries as they are only discretionary beneficiaries and have no rights of non-discretionary beneficiaries.

    If the other side also know this (I'm sure they will soon do even if they don't already) then they are going to fight tooth and claw to get her removed as a trustee now as they will not like this one little bit.
  • securityguysecurityguy Forumite
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    Yet again, we see the problems inherent in using the the tools of the landed gentry, with estate managers, good legal advice and a certain amount of "noblesse oblige" to restrain the more avaricious, in order to deal with the affairs of perfectly ordinary estates. A complex mesh of trusts, executors and trustees, with poorly drafted instruments and poorly advised principals, results in a shambles of claim and counter-claim with everyone coming out of it badly.

    This could all have been made much simpler by a will which liquidated the estate, bought an annuity for the widow if necessary, provided appropriate housing for the widow on a "life interest" basis and made the daughters the residual beneficiaries. No complex trusts beyond that required to secure the life interest, no need for extensive messing about.

    As things stand, the widow has a property she can't afford to maintain, chaos with regard to trustees and executors, a court case which isn't going to get easier and everyone unhappy. Well done, complex will writer: you've certainly made things better.
  • getmore4lessgetmore4less Forumite
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    I think the reality is that it is is quite simple, just explained badly.

    There can be good reasons for a DT over a interest in possession one.

    The problems seem to have come about because W failed to take notice of the codicil and started without D1/2.
  • securityguysecurityguy Forumite
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    *The problems seem to have come about because W failed to take notice of the codicil and started without D1/2.*

    That's my point, really. Clever lawyer sweeps in and sells complex arrangement to enthusiastic testator who claims to understand it (although they probably don't) and attempts to explain it to their spouse (who also probably doesn't understand it). Testator dies. Testator's spouse, who has never done anything financial or legal more complex than opening an ISA, is then assailed from every side with claims that it's all simple, solicitors charge too much, you can do it yourself, and then proceeds to do just that based on good intentions, "common sense" and "what seems fair".

    At which point, all it takes is one other beneficiary to take the hump, possibly justifiably, possibly unjustifiably, and the whole thing degenerates in chaos.

    A generation ago, the people who would be using these sort of instruments would have the trusted estate manager, or the trusted family solicitor, to pick the pieces up: there would be enough money, and enough complexity, that no grieving widow would consider for a second doing it themselves. Now these sorts of instruments are being thrust into the hands of people who simply can't cope with them.

    I absolutely understand that there are circumstances for which complex trusts are desirable and possibly even essential. I'm just not convinced that's true in a lot of the cases in which they are used.
  • carledcarled Forumite
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    I think the reality is that it is is quite simple, just explained badly.

    There can be good reasons for a DT over a interest in possession one.

    The problems seem to have come about because W failed to take notice of the codicil and started without D1/2.

    W didn't KNOW about the codicil until 3 weeks after the funeral when she went to visit a solicitor for guidance. Her husband never bothered telling her or D1 & D2 that he'd done it.
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