Uncashed Cheques

fcandmp

I would appreciate any guidance regarding a situation regarding my wife's late aunt and cheques she wrote before she died. It appears she signed cheques (as gifts) for considerable sums to various people, in the week before she died, both on her French bank account and English bank account. The largest on the English account has not been cashed by the person to whom she had previously granted power of attorney. That person has now been told by the executors that the cheque cannot be honoured as it was not cashed before my wife's aunt died.   Is this correct, i.e. it is not an outstanding claim on the estate?  Many thanks 

Keep_pedalling

That is correct.

Extract from Practical Law:

A transfer of money by cheque is not completed until the cheque is cleared, because the transferor can cancel the cheque before then (Owen, Re [1949] 1 All E.R. 901, Swinburne, Re [1926] Ch. 38 and (before the Special Commissioners) Curnock v Inland Revenue Commissioners [2003] UKSC SPC00365)

In Curnock Mr Avery-Jones quoted Sir Ernest Pollock MR:

“A cheque, as explained by Lord Romilly, MR, in Hewitt v Kaye [(1868) L.R. 6 Eq. 198] is nothing more than an order to obtain a certain sum of money, and it makes no difference whether the money is with the bankers or elsewhere. It is an order to deliver the money; and if the order is not acted upon in the lifetime of the person who gives it, it is worth nothing.”

Keep_pedalling

Not sure the same would apply to a French cheque as they can’t be cancelled due to a change of mind. 

It would also be different for a cheque written for goods or services provided. The cheque still could not be cashed but the amount would be classed as a debt owed by the estate and would need to be paid by the executors. 

Keep_pedalling

Looking at your previous thread it seems your aunt died intestate, if the beneficiaries of her estate agree they can make a deed of variation to gift her attorney the amount of the cheque, which would seem to be the right thing to do.

I do find it amazing that she spent time writing cheques rather than writing a will.

fcandmp

Keep_pedalling said:

Looking at your previous thread it seems your aunt died intestate, if the beneficiaries of her estate agree they can make a deed of variation to gift her attorney the amount of the cheque, which would seem to be the right thing to do.

I do find it amazing that she spent time writing cheques rather than writing a will.

Thank you, but this is complicated as one of the cheques is written on a UK bank account, for which there is a will (as part of the UK estate, and only intestate in context of the French estate) and multiple beneficiaries including 5 charities. It is perhaps debatable as to whether these were deathbed gifts or not; if they are deathbed gifts I understand that they would be handled outside the estate, e.g. plead to the bank to honour them with witness testimony.  

Keep_pedalling

fcandmp said:

Keep_pedalling said:

Looking at your previous thread it seems your aunt died intestate, if the beneficiaries of her estate agree they can make a deed of variation to gift her attorney the amount of the cheque, which would seem to be the right thing to do.

I do find it amazing that she spent time writing cheques rather than writing a will.

Thank you, but this is complicated as one of the cheques is written on a UK bank account, for which there is a will (as part of the UK estate, and only intestate in context of the French estate) and multiple beneficiaries including 5 charities. It is perhaps debatable as to whether these were deathbed gifts or not; if they are deathbed gifts I understand that they would be handled outside the estate, e.g. plead to the bank to honour them with witness testimony.  

The bank will not honour them, only a court can make such decisions and that would be expensive with little chance of success. Would the beneficiaries of her French estate be willing to compensate the person who lost out from their inheritance?

fcandmp

Keep_pedalling said:

fcandmp said:

Keep_pedalling said:

Looking at your previous thread it seems your aunt died intestate, if the beneficiaries of her estate agree they can make a deed of variation to gift her attorney the amount of the cheque, which would seem to be the right thing to do.

I do find it amazing that she spent time writing cheques rather than writing a will.

Thank you, but this is complicated as one of the cheques is written on a UK bank account, for which there is a will (as part of the UK estate, and only intestate in context of the French estate) and multiple beneficiaries including 5 charities. It is perhaps debatable as to whether these were deathbed gifts or not; if they are deathbed gifts I understand that they would be handled outside the estate, e.g. plead to the bank to honour them with witness testimony.  

The bank will not honour them, only a court can make such decisions and that would be expensive with little chance of success. Would the beneficiaries of her French estate be willing to compensate the person who lost out from their inheritance?

I understand, but thought the bank route might be worth a shot. Further complications: two cheques written on French account, one already cashed, but insufficient funds to pay the second without sale of French property (all in the hands of the local notaire and not sure how they will see the uncashed cheque legally or ethically). The English executors have already said as far as they are concerned the cheque is void and as you suggest it would be up to multiple executors to decide on a deed of variation; funds above the IHT boundary go to charity less executor fees and HMRC slice. 

Keep_pedalling

fcandmp said:

Keep_pedalling said:

fcandmp said:

Keep_pedalling said:

Looking at your previous thread it seems your aunt died intestate, if the beneficiaries of her estate agree they can make a deed of variation to gift her attorney the amount of the cheque, which would seem to be the right thing to do.

I do find it amazing that she spent time writing cheques rather than writing a will.

Thank you, but this is complicated as one of the cheques is written on a UK bank account, for which there is a will (as part of the UK estate, and only intestate in context of the French estate) and multiple beneficiaries including 5 charities. It is perhaps debatable as to whether these were deathbed gifts or not; if they are deathbed gifts I understand that they would be handled outside the estate, e.g. plead to the bank to honour them with witness testimony.  

The bank will not honour them, only a court can make such decisions and that would be expensive with little chance of success. Would the beneficiaries of her French estate be willing to compensate the person who lost out from their inheritance?

I understand, but thought the bank route might be worth a shot. Further complications: two cheques written on French account, one already cashed, but insufficient funds to pay the second without sale of French property (all in the hands of the local notaire and not sure how they will see the uncashed cheque legally or ethically). The English executors have already said as far as they are concerned the cheque is void and as you suggest it would be up to multiple executors to decide on a deed of variation; funds above the IHT boundary go to charity less executor fees and HMRC slice. 

Not sure what happens with a bounced French cheque, but I suspect it can’t be presented again as you can’t top up a dead persons account.

Deeds of variation must be done by the loosing beneficiaries rather than the executors.

stuhse

fcandmp said:

 The largest on the English account has not been cashed by the person to whom she had previously granted power of attorney. That person has now been told by the executors that the cheque cannot be honoured as it was not cashed before my wife's aunt died.   Is this correct, i.e. it is not an outstanding claim on the estate?  Many thanks 

My take on the situation.  The questions need to be separated to avoid confusion.

Can the cheque be cashed now she is dead ?....no, this is a simple matter of fact, it is invalid on death.

Is the person who has the cheque due the money from the estate ?  Its quite clear the aunt intended the person to have this money.   Imagine the aunt had gone into a shop on a Saturday afternoon and bought some goods which she paid for by cheque. She dies Saturday evening.  When the shop keeper banks the cheque on Monday (blissfully unaware that she is dead) the cheque will fail.  Is the shop keeper due their money ? It would seem absolutely so to any reasonable person and the executors would need to settle up i would have thought.  So in this case the aunt gifted some money, the cheque is evidence.  Im unsure if the law views it differently because it was a gift, but i would have thought that when the executors are presented with the cheque as a claim against the estate they would be duty bound to settle it.-----i might be wrong and have no specialist legal knowledge..but it seems logical, and the law usually is.

RAS

fcandmp said:Thank you, but this is complicated as one of the cheques is written on a UK bank account, for which there is a will (as part of the UK estate, and only intestate in context of the French estate) and multiple beneficiaries including 5 charities. It is perhaps debatable as to whether these were deathbed gifts or not; if they are deathbed gifts I understand that they would be handled outside the estate, e.g. plead to the bank to honour them with witness testimony.  

Hopefully the charities were left fixed sums or specific percentages of the estate? And is that the English estate or the whole estate?

If they are residual beneficiaries, then getting a deed of variation is going to be very difficult, and complex if they were left a percentage.

Keep_pedalling

stuhse said:

fcandmp said:

 The largest on the English account has not been cashed by the person to whom she had previously granted power of attorney. That person has now been told by the executors that the cheque cannot be honoured as it was not cashed before my wife's aunt died.   Is this correct, i.e. it is not an outstanding claim on the estate?  Many thanks 

My take on the situation.  The questions need to be separated to avoid confusion.

Can the cheque be cashed now she is dead ?....no, this is a simple matter of fact, it is invalid on death.

Is the person who has the cheque due the money from the estate ?  It’s quite clear the aunt intended the person to have this money.   Imagine the aunt had gone into a shop on a Saturday afternoon and bought some goods which she paid for by cheque. She dies Saturday evening.  When the shop keeper banks the cheque on Monday (blissfully unaware that she is dead) the cheque will fail.  Is the shop keeper due their money ? It would seem absolutely so to any reasonable person and the executors would need to settle up i would have thought.  So in this case the aunt gifted some money, the cheque is evidence.  Im unsure if the law views it differently because it was a gift, but i would have thought that when the executors are presented with the cheque as a claim against the estate they would be duty bound to settle it.-----i might be wrong and have no specialist legal knowledge..but it seems logical, and the law usually is.

But that is not how it treated in English law (see my earlier post). A cheque written for goods and services is a different matter, if I write out 2 checks one for a gift and one for a new carpet I just had laid and then cancel both the following day, I will have simply cancelled the gift, but I still o owe the carpet fitter their money. Likewise dying the day after cancels the gift and payment to the carpet fitter but the latter becomes a debt owed by the estate that the administrator need to pay.