Misrepresentation to access funds

concerned43

Malthusian said:

Delburn said:

It appeared that the Ombudsman paid little attention to arguments such as we followed our policies/procedures.

YBS' arguments on those lines are hilarious. "We released the funds at our discretion" isn't a defence, it's a confession. "We followed our procedures" wouldn't be a defence either. If the bank's policy is that every fifth customer who enters the branch gets punched in the nose it doesn't make it legal or reasonable.
It is also heartening that an investigator (the first FOS case handler) initially found for the estate, and it only went to an ombudsman because YBS appealed, and the grounds for their appeal were essentially "waaaaaah". 
If I was the OP I would email them and ask them to consider that case when dealing with the complaint. (Ombudsmen aren't bound by precedent as judges are, but what is fair and reasonable in one case will usually be found to be fair and reasonable in another.)
The facts are a little different, mainly in that the bank in the OP's case does not appear to have been aware of a potential dispute when they paid the money out. But that fact does not appear to be crucial in the Ombudsman's decision.

But in any event, the central issue here is that YBS has released funds to someone that was not authorised to receive them. I’m not commenting on YBS’ processes or whether these are correct – it isn’t my role to do so (although again I note the funds were actually released outside of its processes using its discretion). I’m simply considering whether it has made an error when it decided to release the funds to the other party. And based on the information available in this specific complaint, I think it has. And I think this has caused a direct loss to Mrs M’s estate.

The bank were informed of the dispute but VM claim due to a backlog in their bereavement dept, no one had read it. 

concerned43

Malthusian said:

That sounds like a largely automated acknowledgment. The FOS is quicker than it was in the pandemic, but it still usually takes some months for an adjudicator to actually start work on the case. I'd be delighted to be proved wrong but I wouldn't expect a full response for a while.

They did say they can look at it urgently if I have a serious illness, which I have. Will soon find out if they can expedite it. 

bobster2

Malthusian said:

p00hsticks said: 

Whilst I agree with the general gist of the post, I think it's stretching it a bit to compare a child of the deceased who presumably supplied the bank with acceptable evidence of that fact with a 'random person'.

The OP is the estate's executor and the person with legal authority over the deceased's account. Anyone else = some random dude, regardless of DNA. Beneficiaries of a testate estate do not have any legal right to access estate funds, they have to let the executor do their job and wait for their share.
If banks want to pay out money to random people who claim they have a right to it then it's a free country, but they are responsible when it goes wrong, not the accountholder. 

I'm also not convinced that it's appropriate to liken this to a case of identity fraud or a cloned credit card. 

In one case the bank pays their accountholder's money to someone who isn't the accountholder. In the other case the bank pays their accountholder's money to someone who isn't the accountholder.

There is a fundamental difference - someone perpetrating identity fraud will never have a right to access the funds.

However, there are many situations when a member of a family, who cannot produce a will showing they are an executor, nevertheless IS entitled to access the funds. E.g. if no will exists or perhaps it exists and the sole named executor is dead.

So if, for example, the son of a deceased account holder asks a bank for access to funds - what steps do you think the bank should go through before releasing the funds? For smaller amounts, where probate is not likely to be needed, it's not going to be feasible for banks to do genealogical research and/or exhaustive searches for a will (which may be held privately in any case).

Malthusian

concerned43 said:

Interesting read. I have made it easier for the ombudsman as Virgin Money admit their mistake and upheld my complaint. It's with the ombudsman because they refuse to answer the question put to them regarding what happens if they cannot recall the funds. 

As per the very wise Mr Stoker who gave the Ombudsman decision, what should happen is that Virgin Money reimburse the estate, and it's then their problem if they can recall the funds. You would sign an undertaking that if the funds are repaid to you by your brother (i.e. you get them back twice), you forward the second payment to Virgin Money.

The issue I have with this case is that the thief got away with it. Where's the justice here?

Too early to say they've got away with it until the bank has given up trying to reclaim it. 
This is a civil matter so the only "justice" that can be expected is that the thief gives back the money.

The bank were informed of the dispute but VM claim due to a backlog in their bereavement dept, no one had read it. 

In that case the facts are even more similar to the case Delburn dug up, and there is more reason to hope the Ombudsman will take a similar view. It's not your problem or the Ombudsman's if Virgin Money couldn't be bothered to open their post / read their emails.

concerned43

Malthusian said:

concerned43 said:

Interesting read. I have made it easier for the ombudsman as Virgin Money admit their mistake and upheld my complaint. It's with the ombudsman because they refuse to answer the question put to them regarding what happens if they cannot recall the funds. 

As per the very wise Mr Stoker who gave the Ombudsman decision, what should happen is that Virgin Money reimburse the estate, and it's then their problem if they can recall the funds. You would sign an undertaking that if the funds are repaid to you by your brother (i.e. you get them back twice), you forward the second payment to Virgin Money.

The issue I have with this case is that the thief got away with it. Where's the justice here?

Too early to say they've got away with it until the bank has given up trying to reclaim it. 
This is a civil matter so the only "justice" that can be expected is that the thief gives back the money.

The bank were informed of the dispute but VM claim due to a backlog in their bereavement dept, no one had read it. 

In that case the facts are even more similar to the case Delburn dug up, and there is more reason to hope the Ombudsman will take a similar view. It's not your problem or the Ombudsman's if Virgin Money couldn't be bothered to open their post / read their emails.

If I agreed to VM reimbursing the estate and brother keeps the money, then I am being done out of any inheritance. That's unfair.
When does it move from civil to criminal. I have read lots online about the executor being arrested for theft so why wouldn't that apply to a beneficiary? 

concerned43

bobster2 said:

Malthusian said:

p00hsticks said: 

Whilst I agree with the general gist of the post, I think it's stretching it a bit to compare a child of the deceased who presumably supplied the bank with acceptable evidence of that fact with a 'random person'.

The OP is the estate's executor and the person with legal authority over the deceased's account. Anyone else = some random dude, regardless of DNA. Beneficiaries of a testate estate do not have any legal right to access estate funds, they have to let the executor do their job and wait for their share.
If banks want to pay out money to random people who claim they have a right to it then it's a free country, but they are responsible when it goes wrong, not the accountholder. 

I'm also not convinced that it's appropriate to liken this to a case of identity fraud or a cloned credit card. 

In one case the bank pays their accountholder's money to someone who isn't the accountholder. In the other case the bank pays their accountholder's money to someone who isn't the accountholder.

There is a fundamental difference - someone perpetrating identity fraud will never have a right to access the funds.

However, there are many situations when a member of a family, who cannot produce a will showing they are an executor, nevertheless IS entitled to access the funds. E.g. if no will exists or perhaps it exists and the sole named executor is dead.

So if, for example, the son of a deceased account holder asks a bank for access to funds - what steps do you think the bank should go through before releasing the funds? For smaller amounts, where probate is not likely to be needed, it's not going to be feasible for banks to do genealogical research and/or exhaustive searches for a will (which may be held privately in any case).

How would the bank know if probate is needed or not. They don't know anything about the deceased other than the amount of money in their account. At the very least they should ask for proof that they registered the death. There are checks done at the registrar stage to ensure the right person is registering the death. If no checks by the bank then we can all assume our bank accounts are not safe in the event of death and should be warned by banks that this is the case. 

Alderbank

concerned43 said:

Malthusian said:

concerned43 said:

Interesting read. I have made it easier for the ombudsman as Virgin Money admit their mistake and upheld my complaint. It's with the ombudsman because they refuse to answer the question put to them regarding what happens if they cannot recall the funds. 

As per the very wise Mr Stoker who gave the Ombudsman decision, what should happen is that Virgin Money reimburse the estate, and it's then their problem if they can recall the funds. You would sign an undertaking that if the funds are repaid to you by your brother (i.e. you get them back twice), you forward the second payment to Virgin Money.

The issue I have with this case is that the thief got away with it. Where's the justice here?

Too early to say they've got away with it until the bank has given up trying to reclaim it. 
This is a civil matter so the only "justice" that can be expected is that the thief gives back the money.

The bank were informed of the dispute but VM claim due to a backlog in their bereavement dept, no one had read it. 

In that case the facts are even more similar to the case Delburn dug up, and there is more reason to hope the Ombudsman will take a similar view. It's not your problem or the Ombudsman's if Virgin Money couldn't be bothered to open their post / read their emails.

If I agreed to VM reimbursing the estate and brother keeps the money, then I am being done out of any inheritance. That's unfair.
When does it move from civil to criminal. I have read lots online about the executor being arrested for theft so why wouldn't that apply to a beneficiary? 

It's a question of criminal intent.
If your brother believed that he was entitled to that money in his mother's account after she had died, it is civil.
It would be theft (criminal) if he knew he was not entitled to it but made a false declaration to obtain it.
If he is a beneficiary it would make it more reasonable for him to believe that he was entitled to withdraw that money.

concerned43

Alderbank said:

concerned43 said:

Malthusian said:

concerned43 said:

Interesting read. I have made it easier for the ombudsman as Virgin Money admit their mistake and upheld my complaint. It's with the ombudsman because they refuse to answer the question put to them regarding what happens if they cannot recall the funds. 

As per the very wise Mr Stoker who gave the Ombudsman decision, what should happen is that Virgin Money reimburse the estate, and it's then their problem if they can recall the funds. You would sign an undertaking that if the funds are repaid to you by your brother (i.e. you get them back twice), you forward the second payment to Virgin Money.

The issue I have with this case is that the thief got away with it. Where's the justice here?

Too early to say they've got away with it until the bank has given up trying to reclaim it. 
This is a civil matter so the only "justice" that can be expected is that the thief gives back the money.

The bank were informed of the dispute but VM claim due to a backlog in their bereavement dept, no one had read it. 

In that case the facts are even more similar to the case Delburn dug up, and there is more reason to hope the Ombudsman will take a similar view. It's not your problem or the Ombudsman's if Virgin Money couldn't be bothered to open their post / read their emails.

If I agreed to VM reimbursing the estate and brother keeps the money, then I am being done out of any inheritance. That's unfair.
When does it move from civil to criminal. I have read lots online about the executor being arrested for theft so why wouldn't that apply to a beneficiary? 

It's a question of criminal intent.
If your brother believed that he was entitled to that money in his mother's account after she had died, it is civil.
It would be theft (criminal) if he knew he was not entitled to it but made a false declaration to obtain it.
If he is a beneficiary it would make it more reasonable for him to believe that he was entitled to withdraw that money.

I get what you're saying but he now knows he's not entitled to it and won't pay it into the estate. So keeping money he knows is not his - isn't that theft? 

Spendless

concerned43 said:

Alderbank said:

concerned43 said:

Malthusian said:

concerned43 said:

Interesting read. I have made it easier for the ombudsman as Virgin Money admit their mistake and upheld my complaint. It's with the ombudsman because they refuse to answer the question put to them regarding what happens if they cannot recall the funds. 

As per the very wise Mr Stoker who gave the Ombudsman decision, what should happen is that Virgin Money reimburse the estate, and it's then their problem if they can recall the funds. You would sign an undertaking that if the funds are repaid to you by your brother (i.e. you get them back twice), you forward the second payment to Virgin Money.

The issue I have with this case is that the thief got away with it. Where's the justice here?

Too early to say they've got away with it until the bank has given up trying to reclaim it. 
This is a civil matter so the only "justice" that can be expected is that the thief gives back the money.

The bank were informed of the dispute but VM claim due to a backlog in their bereavement dept, no one had read it. 

In that case the facts are even more similar to the case Delburn dug up, and there is more reason to hope the Ombudsman will take a similar view. It's not your problem or the Ombudsman's if Virgin Money couldn't be bothered to open their post / read their emails.

If I agreed to VM reimbursing the estate and brother keeps the money, then I am being done out of any inheritance. That's unfair.
When does it move from civil to criminal. I have read lots online about the executor being arrested for theft so why wouldn't that apply to a beneficiary? 

It's a question of criminal intent.
If your brother believed that he was entitled to that money in his mother's account after she had died, it is civil.
It would be theft (criminal) if he knew he was not entitled to it but made a false declaration to obtain it.
If he is a beneficiary it would make it more reasonable for him to believe that he was entitled to withdraw that money.

I get what you're saying but he now knows he's not entitled to it and won't pay it into the estate. So keeping money he knows is not his - isn't that theft? 

Why is he refusing to re-pay it? Does he intend keeping it for himself. Who has paid for the funeral? You mentioned an insurance policy earlier in the thread, who does this money go to? 

concerned43

Spendless said:

concerned43 said:

Alderbank said:

concerned43 said:

Malthusian said:

concerned43 said:

Interesting read. I have made it easier for the ombudsman as Virgin Money admit their mistake and upheld my complaint. It's with the ombudsman because they refuse to answer the question put to them regarding what happens if they cannot recall the funds. 

As per the very wise Mr Stoker who gave the Ombudsman decision, what should happen is that Virgin Money reimburse the estate, and it's then their problem if they can recall the funds. You would sign an undertaking that if the funds are repaid to you by your brother (i.e. you get them back twice), you forward the second payment to Virgin Money.

The issue I have with this case is that the thief got away with it. Where's the justice here?

Too early to say they've got away with it until the bank has given up trying to reclaim it. 
This is a civil matter so the only "justice" that can be expected is that the thief gives back the money.

The bank were informed of the dispute but VM claim due to a backlog in their bereavement dept, no one had read it. 

In that case the facts are even more similar to the case Delburn dug up, and there is more reason to hope the Ombudsman will take a similar view. It's not your problem or the Ombudsman's if Virgin Money couldn't be bothered to open their post / read their emails.

If I agreed to VM reimbursing the estate and brother keeps the money, then I am being done out of any inheritance. That's unfair.
When does it move from civil to criminal. I have read lots online about the executor being arrested for theft so why wouldn't that apply to a beneficiary? 

It's a question of criminal intent.
If your brother believed that he was entitled to that money in his mother's account after she had died, it is civil.
It would be theft (criminal) if he knew he was not entitled to it but made a false declaration to obtain it.
If he is a beneficiary it would make it more reasonable for him to believe that he was entitled to withdraw that money.

I get what you're saying but he now knows he's not entitled to it and won't pay it into the estate. So keeping money he knows is not his - isn't that theft? 

Why is he refusing to re-pay it? Does he intend keeping it for himself. Who has paid for the funeral? You mentioned an insurance policy earlier in the thread, who does this money go to? 

I don't know why he is not answering any of the demand letters from the solicitor. I don't know what he has done with the money. The funeral is not paid yet as I'm waiting on the insurance policy to pay it but family have logged their bank details with the insurance company so that they can get their share of the money. Now in a position that the insurance company is scared to do anything.