Complex contentious probate

Dead_keen

This is not my area, but my 2p:

1. The OP has spotted some procedural irregularities.
2. But I think the OP has allowed these to obscure the much more serious problem.
3. That being that the OP's dad appears to have breached his duties as executor.
4. But we are seeing this at a big distance. The OP does not have all the information and things are likely to be way more nuanced than the tiny bit written here. So, to me, binary comments like "zero chance" may not be right with more facts
5. A's death did not make her entitlement disappear. It passed into her estate.
6. From my perspective, until B obtained letters of administration, there was no one who could give the OP's dad a safe discharge.
7. So the dad should probably have: (i) established who was applying for grant, (ii) retained A's share in a separate executor's account, (iii) potentially sought the directions of the court (see the bit below about capacity in relation to the will), and (iv) then paid the money once there was an authorised PR.
8. But that does not seem to have happened and instead the OP's dad "used some of those funds to purchase his own home". Using 10% of those funds to buy a house is obviously very different to using almost all of those funds.
9. "There are no liquid assets remaining" is not a defence but I don't think the OP is actually saying that in this context.
10. So it makes sense to me (but see the capacity point) that there would be a claim by A's PR that would include interest and costs (as well as getting their share).
11. I think that there may also be the possibility of an equitable remedy that traces the cash from the sale of the house to the OP's dad's house, meaning that some of the OP's dad's house may be an asset of A's estate.
12. From what the OP has said, the will challenge looks weak to me. But I am not a lawyer. An 82 year old with dementia may well have the capacity to make a will. Many will have.
13. Having dementia on a 2019 death certificate does not establish the lack of capacity in 2016. Dementia progresses at different rates and I know people who have had dementia for five years who clearly have testamentary capacity (albeit they cannot remember the name of the device that the call from).
14. A few bits that strike me as making it weak are (i) the OP's dad proved the will and administered the estate without going to the court to challenge it, (ii) the OP does not mention any contemporaneous evidence as to capacity and without that it is likely to be difficult to throw the onus on to A's estate to prove that the deceased did have capacity, (iii) the OP has not explained who would have benefited under the previous will or intestacy (would it have gone to the OP's dad?).
15. The statement that the OP's dad's letters “alone would justify further investigation” may be true (in the limited sense of requesting records from the lawyers who drafted the will) but to me, a non-lawyer, it seems a very long way from defending the claim that has been made, let alone to support a claim that the deceased did not have sufficient capacity to make the 2016 will.
16. The OP should probably google the civil procedure rules, but I thought that if a claim is made against someone who is died then it should be made against "the estate of". But if the solicitors did not know that he had already died then that does automatically wipe out the claim .
17. I have no idea about the Land Registry position.
18. In terms of evidence for the renovation expenses, emails, bank statements, credit card statements, valuations done for probates, photos, etc can all be helpful. Others have commented on the tax position.
19. SRA complaint? At some stage it may well make sense, probably little harm in the OP giving it a go, and a bit of a anger-relieving measure, once things have been sorted. But doing it while the OP doesn't have all the facts seems to me to push it a bit too far. What might seem like a misrepresentation now might not turn out to be one with more facts. For example, the Land Registry point may be relevant because the solicitors believed that the cash would be traced to the OP's dad's house so that some of it was part of A's estate.
20. What next? As others have said, definitely don't rely on a bunch of strangers on the interweb. Get proper professional advice based on the actual facts. It will cost the OP money and it may make them very unhappy. But it might help resolve this quicker and in a more cost efficient way than going to the court.
21. I'd also say don't let the moral position lead you away from the legal position and a sensible commercial position. It might cost you £50,000+ in B's legal fees (plus the OP, as his dad's executor, would still pay A's original share and interest) to get an apology that B's solicitor spelt a name wrong when they checked the probate registry.

Cubicsrube

OP, you're very vague on where the assets from the cousin's estate actually ended up. The will, which your father probated and did not contest, gave him 50%. A property sold for 161k, of which he received 158k, and used "some of it" to buy a property for himself…yet there are "no liquid assets left" in his estate??? It sounds very much as if he simply appropriated the whole of the inheritance and crossed his fingers…

lincroft1710

According to cousin's will "A" was entitled to 50% of cousin's estate. As "A" died before receiving their inheritance, it forms part of their estate. If "A"''s beneficiary subsequently dies, then the cousin's bequest forms part of the beneficiary's estate.

Cousin's will was not challenged by executors or beneficiaries, let sleeping dogs lie

Forget whatever money your father spent on improving cousin's house. He did not do the right thing, he withheld the money due to "A" and your first priority should be in settling that debt from his estate

Medusa80

Update/clarification. I saw no correspondence whilst this woman was alive. Then sporadic threatening letters demanding dad handed over account information, money etc despite this woman's sister having no legal authority. He actually pointed that out. Last letter was sent a month before his death threatening immediate legal action - this actually took nearly two years.

I'm guessing dad used half of his money to buy his council house (83k) and had the rest in his bank. This then came to me when he passed. I spent most of that renovating his purchased council house to rent it out as well as a large sum owed for care fees for cousin who spent nearly a year in a care home before he passed. I saw correspondence once my dad had passed and sorted it immediately. I now rent the house and have a BTL mortgage on it. More recently, DWP have contacted me and said dad might owe money for benefits he received. He probably does. Of course, if he was indeed keeping money as per the will's instructions (nobody was authorised to receive it at the time of his death although I also acknowledge he didn't agree with will) can DWP treat this as him not being able to claim certain benefits because he' could be classed as holding it until he can administer money to someone with authority? Another complex, unanswered question.

Now, if solicitors want to chase all this for what could be for nowhere near what they are asking, I would be surprised. Thanks for all the helpful input but financially, this isn't a case I would think a solicitor would now find financially worth it. And personally, I'd rather the whole estate go on debts than a family who took advantage and were out to make a quick buck.

Dead_keen

I'm guessing dad used half of his money to buy his council house (83k) and had the rest in his bank.

Let's pretend your guess is right. He had the money in his bank account. And one guess more, he was holding it on behalf of the estate he was administering it. It wasn't his money but it was in his bank account. It normally makes sense to have a separate bank account to make the separation from his own money clear and easy. But that second guess is my one here.

DWP have contacted me and said dad might owe money for benefits he received. … can DWP treat this as him not being able to claim certain benefits because he' could be classed as holding it until he can administer money to someone with authority?

On my guess above, it is not his money and so it's not counted as his for benefits.

So the question then is can you convince whoever you need to convince that my guess is actually the truth. If the amount was in a separate bank account and is exactly 50% x net value of estate and there is a contemperaneous bit of paper stuck to the fridge saying this then it should be easy.

But if the numbers don't tie up, most of the money is in a one-year fixed rate saving account and there is no note of the fridge, then the DWP may take more convincing that the money was actually being held on trust for the estate.

Anyway, let's keep the guess going that he was holding the money on trust for the estate, just waiting for someone to be able to give good receipt for it …

I spent [some] that renovating his purchased council house

So with my fiction, that's a problem. You have spent the money held on trust for the estate on your own things. So you owe that money personally to the original deceased cousin's estate.

as well as a large sum owed for care fees for cousin who spent nearly a year in a care home before he passed

So that's different. If the cousin's estate had £158,000 of cash and £100,000 owed for care home fees then the estate is only £58,000 and so a 50% share is £29,000.

Now I have no idea if any of that is right because I am just guessing at what the facts might be.

Sea_Shell

What was the actual value of cousins estate, after all debts to it paid?

Half of that amount is due to A's estate (the original 50%)

Where is that money?

I wouldn't be surprised if solicitors DO pursue this amount.

Keep_pedalling

You do realise that an executor failing to abide by their legal obligations in distributing the estate as the law requires you to opens you up tp personal liability for the debt, so it is not just the assets of the estate that are under threat but your own as well.

Reed_Richards

Your father's cousin's will gave a bequest to their neighbour. Then the residue of the estate was to be divided 50/50 between your father and person A. I don't think you have said if your father actually paid the bequest to the neighbour; the fact that you still worry that this bequest was coerced might imply that he did not. You say that the courts will decide who should take over from your father as executor and, as the only person still alive who benefits from the will, they might decide it should be the neighbour.

Medusa80

https://forums.moneysavingexpert.com/discussion/comment/82144536#Comment_82144536

But as my father said in 2022, this woman's sister has no legal authority so even if he was willing to give the money to her, she didn't gain letters if administration until 25 when he had passed. Once cousin's house was sold, the original beneficiary was dead. So how acan a Judge can say he has failed when his own correspondence demanded to know what authority this sister was acting on and refused to correspond until they showed evidence? He may as well give the money to someone on the street in that case!