Legacy transferred but apparently wrong amount

Emmy_Bastin

My husband's cousin died intestate at the age of 49 in Jan 2016. She was single with no dependants. Her mother (husband's aunt) died in October 2016 and left everything to the dead cousin. The aunt has another son who is severely disabled and has been in means-tested care since early childhood. He is now 58. The estate is worth approx £750-800k which will all go to the son. The solicitor originally dealing with the estate told us that she knew that the aunt wanted to change the will after the death of the daughter, but didn't do anything about it.



My mother in law paid for the funeral expenses of both the cousin and aunt from her own account.



The will of the aunt stated: "I give to my sister (NAME) (ADDRESS) and my sister in law (NAME) (ADDRESS) as shall survive me and if more than one in equal shares free of all taxes the sum of ten thousand pounds."



After the family agreeing to it, the solicitors applied to the Court of Protection for deputyship (financial and health) of the son which was granted in January 2018. We were notified of the award in March 2018. Probate was granted in October 2018 and my mother received reimbursement for the funeral expenses a couple of weeks ago. Yesterday, my mother in law received £10,000 into her bank account which she then contacted the solicitors about - querying if it was correct. The other beneficiary received a letter stating that once identification documents had been sent/verified, she would receive £10,000.



The solicitor rang my mother in law today to say that they had paid this amount in error and that she would have to pay back £5,000.


After a catalogue of incompetencies and errors on the part of the solicitors, my questions are:

1. Was the solicitor negligent in their duty to provide the service to the aunt whilst she was alive with regards to rewriting the will?
2. Does the wording in the will regarding the legacy to the sister and sister-in-law mean that they should have received £5,000 each or should it be £10,000 each?
3. If Point 2 is £5,000, is my mother in law legally bound to return half of the money which was deposited in her account?
4. Although I haven't catalogued all of the errors and incompetencies, is there the basis of a complaint which would likely be upheld.

My mother in law is 83 and of a delicate disposition. The deaths in themselves were very distressing for her, but all of this is taking it's toll on her.


Thanks in advance for any advice.


Em

Keep_pedalling

1. No, it was her responsibility to make a new will, but like so many people never got round to it.

2. Looks like £10,000 between them so £5,000 each

3. Yes

4. I doubt it, she is not the solicitors client the estate is.

Brynsam

Emmy_Bastin wrote: »

1. Was the solicitor negligent in their duty to provide the service to the aunt whilst she was alive with regards to rewriting the will?No. Any number people express the same intention and do nothing about it - not for solicitors to chase them up
2. Does the wording in the will regarding the legacy to the sister and sister-in-law mean that they should have received £5,000 each or should it be £10,000 each? One for the solicitors to advise on
3. If Point 2 is £5,000, is my mother in law legally bound to return half of the money which was deposited in her account? If it was paid in error, then yes.
4. Although I haven't catalogued all of the errors and incompetencies, is there the basis of a complaint which would likely be upheld.Impossible to know how likely a complaint is to be upheld without knowing the full facts. If you seriously feel the solicitors have been negligent, incompetent etc etc then whoever was their actual client is fully entitled to make a complaint, but needs to keep it concise, factual, unemotional and well structured to make any impact

Please see above.

Tom99

Keep_pedalling wrote: »

1. No, it was her responsibility to make a new will, but like so many people never got round to it.
2. Looks like £10,000 between them so £5,000 each
3. Yes
4. I doubt it, she is not the solicitors client the estate is.

Agree with above. The will is quite clear, no doubt about that, a gift of £10,000 to be shared equally if both alive, otherwise all £10,000 to the survivor, or if both dead the £10,000 goes back into the residue.

Presumably re the new will, the aunt would have left all or part of her estate so someone other than her disabled son?

If I have understood the facts correctly the solicitor may have made a serious error which would have saved much IHT on the aunts estate. Are these facts correct?

1 - Daughter (cousin) died Jan 2016 intestate. Did her estate therefore pass back to her mother (aunt) if so how much was her estate worth and was any IHT paid on it?
2 - Mother (aunt) died in October 2016, presumably as part of her estate was the amount she inherited from her daughter who died in Jan 2016?
3 - Mother's (Aunt) will left everything to daughter but since daughter already died the disabled son now inherits all of his mother's estate on which IHT will be paid?
4 - The solicitor you are referring to is acting for the disabled son?

If the above facts are correct then the son will be paying IHT on that part of his mother's estate that she inherited from his sister?

What the solicitor should have done is prepare a deed of variation to the daughter's (cousin's) estate transferring the cousins estate directly to the son. Therefore the cousin's estate does not pass through the mother's estate and therefore will not be subject to IHT on the mother's estate.

This deed of variation would be prepared by the son as a beneficiary of his mother, ie the solicitor would prepare it for him.

However the problem is that it is now out of time to follow that course. The mother's inheritance from the daughter can only be altered by a deed of variation within 2 yrs of the earlier death so by Jan 2018

Keep_pedalling

If the mother was a widow, then it is likely no IHT was due as her estate would have the transferable nil rate bands to play with.

If the son does not have the mental capacity to agree a DoV then it would not have been possible to complete one.

At least the son now has the means to receive care at a level that is probable not available on means tested benefits.