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  • FIRST POST
    posttokev
    Probate/intestacy stalemate query
    • #1
    • 5th Mar 13, 5:12 PM
    Probate/intestacy stalemate query 5th Mar 13 at 5:12 PM
    Dear All,

    I was hoping someone might be able to help me with a probate/intestacy matter. I have simplified the circumstances as best I can below.

    My maternal grandmother died intestate in January 2012, shortly after which her son sold his home and moved into the home formerly occupied by my maternal grandparents. My mother wishes that the proceeds of my grandmother's estate be split 50 - 50 between herself and her brother. (They are the only two children of my grandparents.) However, he insists that he is entitled to the entirety of the estate.

    Correspondence between solicitors for both parties appears to have reached a stalemate and I am looking for some guidance as to how my mother can best proceed with this matter without incurring significant costs.

    Please could you tell me:

    If my uncle can legally reside at the home formerly occupied by my maternal grandparents under these circumstances.

    If there are any means by which my mother can enforce the eviction of my uncle from this property whilst he refuses to address the issue of the distribution of the estate .

    If there are any means by which my mother can break the current stalemate and enforce the distribution of the estate on a 50 - 50 basis between herself and her brother.

    Any help you can offer me would be very much appreciated.

    Thank you very much for your help,

    Kevin.
    Last edited by posttokev; 05-03-2013 at 7:35 PM. Reason: correction
Page 10
    • John_Pierpoint
    • By John_Pierpoint 26th Apr 13, 4:30 AM
    • 8,248 Posts
    • 7,388 Thanks
    John_Pierpoint
    My heart says, of course the daughter, who nursed her mother through her dotage, should inherit "her share".
    My head says. this is a "!!!! shoot", you might as well toss a coin.
    http://en.wikipedia.org/wiki/Craps (I do hate the net nanny)
    So if it is heads, how much is your side of the family likely to win £..........
    If you lose what will it cost? The Google link suggests at least £20,000.
    The choice is yours.

    That said, I recently had a conversation with a solicitor:
    "I don't think I can help you with this - I have never succeeded in such a matter"
    I managed to get some statistics, and the odds were not encouraging.
    The solicitor was right, had I been paying him (say) £200 an hour, I would have chickened out.
    But I battled on for months, thinking "you silly old fool did you really want to spend your retirement doing this?"
    Eventually I had all the evidence possible, but I was still not sure I had enough proof (51% !?) and then other side "folded" and in rolled a big cheque.

    There is a point where people get into a "I've started so I will finish" frame of mind as they have already made such a big investment in the outcome.

    Do you bank with the co-op ? There is a chief executive writing off a huge investment in time and money. I wonder what the opportunity cost of that was?
    http://news.sky.com/story/1082255/co-op-boss-not-quitting-retail-banking
    Last edited by John_Pierpoint; 26-04-2013 at 9:08 AM.
  • posttokev
    Cheers John. We're filing the Defence and hoping that prompts him to back down once he's considered it. Obviously no guarantees...
    • jbworldwide
    • By jbworldwide 8th May 13, 3:15 PM
    • 30 Posts
    • 72 Thanks
    jbworldwide
    Cheers John. We're filing the Defence and hoping that prompts him to back down once he's considered it. Obviously no guarantees...
    Originally posted by posttokev

    do let us know how this works out...
  • Willornot
    What shocking incompetence from your solicitor. This may be a very late call here, but I hav personally had great success using Legal Expenses attached to my Building & Contents home insurance. Many people take this cover by merely ticking a box, or an additional 'add on' from home insurance, and never call them or even know what it's for. If your mom by any luck has this cover, call them, it's generally a company called DAS in Bristol. They will help you and appoint a solicitor for you who will take up your case. It will cost you nothing, you are covered on your home insurance. They fought a case for me which resulted in a win of over £80,000 and it cost me not one penny. Please tell your mom to check if she has this Legal Expenses cover on her insurance.
    • fluffymuffy
    • By fluffymuffy 8th May 13, 4:15 PM
    • 3,100 Posts
    • 5,449 Thanks
    fluffymuffy
    I'll second that. I'm a big fan of legal insurance. So much so that in addition to the policy attached to my household insurance I also have a stand-alone policy, and a policy as an add on to my car insurance. In addition I have legal insurance as an perk of membership to a professional body to do with work. Anyone reading this might want to check what they already have (and buy more if needed, before it's too late). If you're a member of a union you might have legal insurance there too.
    I am the Cat who walks by herself and all places are alike to me.
  • posttokev
    My mother doesn't have legal cover so that's not an option, sadly. Defence is submitted on Friday.
    • NAR
    • By NAR 8th May 13, 5:00 PM
    • 4,739 Posts
    • 12,604 Thanks
    NAR
    Good luck.
  • posttokev
    Hello again. Just thought I'd give a quick update on this...

    Can't remember if I mentioned the Will file, but after much wrangling, we finally got that out of the other side's solicitors. It stated that the Will only applied whilst my mother and grandmother were estranged. As the estrangement ended at the end, this will be one of our strongest arguments should the case go all the way to court.

    My uncle made an offer recently of £10,000 for my mother to basically sign the Will over to him and go away. She continues to fight for a 50-50 share as one of the two siblings.

    In the most recent correspondence with the other side's solicitors, ours stated:

    "We write further to the Court Order of... We note that you have not served a Reply to the Defence by the prescribed date and therefore assume that you do not intend to do so."

    We're still chasing up the significance, if any, of this.

    A hearing's set in a few weeks time where my mother, my uncle and their legal people have to be in attendance. Apparently, this is unusual as usually the parties can just be on the phone, but this judge is said to be quite pro-active in trying to engineer a settlement early and avoid (in our case) the 3 day hearing that's pencilled in for late this year/early next.

    Apart from that, there's another deadline in a month and a half to submit our case. I still feel instinctively it won't got all the way - there's no original Will, the Will file supports our case etc - but we're still mentally preparing ourselves for a court hearing all the same.
  • posttokev
    Mediation
    Hi all,

    So it's mediation on Friday, but I'm a bit unclear as to what happens there. (Even though it seems obvious...)

    Our solicitor has told us it's solely about making offers and nothing else. I'd put together a list of negotiation points, reasons as to why the other side should be open to the offers we make and settle, such as...

    There's no original Will,
    The Will file negates the validity of the Will,
    The solicitor for the other party is in dispute with his own client regarding a key fact,
    At an earlier hearing, the Judge was misled by the other party.

    ...reasons making it abundantly clear to the other party as to why he is unlikely to be successful in court, but our solicitor maintains its purely about offers, not anything contextual. (There are many other points on my list as well.)

    If we are not discussing these points at mediation, there would surely be absolutely no reason for the other party to move from his current position of holding out for the entirety of the estate? It would merely be a matter of us saying, “give us half”, him saying “no”, us saying “give us a bit less than half”, him saying “no” and so on.

    As ever, your thoughts on this would be much appreciated.
  • posttokev
    First time I've ever drawn a blank on this forum. Oh well... Mediation tomorrow...
    • observations from a hill
    • By observations from a hill 19th Sep 13, 11:16 PM
    • 154 Posts
    • 154 Thanks
    observations from a hill
    Well. none of us is better placed to advise than your own solicitor.

    You need to sort out with him tomorrow before your mediation starts

    1. Your ideal settlement.

    2. What you will accept.

    He will ascribe a much higher risk than you do to taking the matter further in the court process. This is normally based on experience. Like, would your mum turn weird in the witness box, did the Judge have sleep disrupted by thunderstorms the night before the hearing.

    So sort out in advance and with advice your minimum requirements - otherwise you will be faced with your solicitor saying tomorrow "This is the deal". Yes, they are just interested in money (either as fixed sum or % of the estate), background details are irrelevant.

    If your solicitor thinks you have a good case (leaving aside the risks of mum having a weird spell & the thunderstorms), then he should tell you.

    Anyway, best of luck tomorrow.
  • posttokev
    Well. none of us is better placed to advise than your own solicitor.
    Originally posted by observations from a hill
    I wanted views in addition to that of my solicitor though. That's been the point all along!

    Anyway... A deal was reached. A "legal charge" has been applied to the property in dispute. The other party was adamant my mother was to get nothing, so it's in the name of myself and my sister. (This is what my mother had suggested originally, so it's cost her brother £10,000 more than necessary to give her what she'd wanted in the first place.) She also gets half her legal fees paid and the shared right to her parents' grave.

    It's all over.

    Thank God.
    • troubleinparadise
    • By troubleinparadise 21st Sep 13, 10:39 AM
    • 1,073 Posts
    • 1,817 Thanks
    troubleinparadise
    Phew! Thanks for your update - and I'm glad for your mum, and you, that there is finally a positive end to this sad story.

    I guess the relationship with the uncle is now irretrievably lost, but well done to you for supporting your mum through what has no doubt been a very stressful time.

    Now you can hopefully put it (mostly) behind you, and get on with normal life again!
  • madbadrob
    Kev,

    I have been away from this forum for a while and have just read through everything. Well done for hanging in there and getting the result that is ameniable to all. Has you now know what mediation is I wont bore you with the details. Enjoy your inheritance and good luck with your future

    Rob
    • John_Pierpoint
    • By John_Pierpoint 22nd Sep 13, 9:06 AM
    • 8,248 Posts
    • 7,388 Thanks
    John_Pierpoint
    I wanted views in addition to that of my solicitor though. That's been the point all along!

    Anyway... A deal was reached. A "legal charge" has been applied to the property in dispute. The other party was adamant my mother was to get nothing, so it's in the name of myself and my sister. (This is what my mother had suggested originally, so it's cost her brother £10,000 more than necessary to give her what she'd wanted in the first place.) She also gets half her legal fees paid and the shared right to her parents' grave.

    It's all over.

    Thank God.
    Originally posted by posttokev
    Congratulations on reaching a settlement. I had the feeling that the legal profession was going to inherit the estate.

    Did you read, mark, learn, and inwardly digest the contents of this link?
    http://www.landregistry.gov.uk/professional/guides/practice-guide-19

    If you did MSE now has an expert to explain it to the rest of us.

    Seriously though what is the position now of "uncle's" family ?
    Does he have children ?
    What does the charge mean, in addition to the chance of this all kicking off again in 15 years time when uncle dies of liver damage?
    http://www.nhs.uk/Conditions/Cirrhosis/Pages/Introduction.aspx

    [I am no lawyer but somehow I would expect a deed of family arrangement to back up the charge? Perhaps amending the "disputed" will to give uncle an interest in possession only with a per stirpes distribution when he dies.]
    http://en.wikipedia.org/wiki/Per_stirpes

    [When the government's attempts at quantitative easing, result in an massive inflation of property values in terms of a devalued currency - what will be the liability of you and your sister for Capital Gains Tax ?]
    Last edited by John_Pierpoint; 22-09-2013 at 9:14 AM.
  • posttokev
    Phew! Thanks for your update - and I'm glad for your mum, and you, that there is finally a positive end to this sad story.

    I guess the relationship with the uncle is now irretrievably lost, but well done to you for supporting your mum through what has no doubt been a very stressful time.

    Now you can hopefully put it (mostly) behind you, and get on with normal life again!
    Originally posted by troubleinparadise
    Thank you. It's still hard to believe this massive black cloud has finally lifted.
  • posttokev
    Congratulations on reaching a settlement. I had the feeling that the legal profession was going to inherit the estate.

    Did you read, mark, learn, and inwardly digest the contents of this link?
    http://www.landregistry.gov.uk/professional/guides/practice-guide-19

    If you did MSE now has an expert to explain it to the rest of us.

    Seriously though what is the position now of "uncle's" family ?
    Does he have children ?
    What does the charge mean, in addition to the chance of this all kicking off again in 15 years time when uncle dies of liver damage?
    http://www.nhs.uk/Conditions/Cirrhosis/Pages/Introduction.aspx

    [I am no lawyer but somehow I would expect a deed of family arrangement to back up the charge? Perhaps amending the "disputed" will to give uncle an interest in possession only with a per stirpes distribution when he dies.]
    http://en.wikipedia.org/wiki/Per_stirpes

    [When the government's attempts at quantitative easing, result in an massive inflation of property values in terms of a devalued currency - what will be the liability of you and your sister for Capital Gains Tax ?]
    Originally posted by John_Pierpoint

    The legal charge means that if my (ex) uncle dies, my sister and I each get 25% of the value of the property. No faffing about dealing with his son or anything like that. Or, if he should wish to sell the property, he needs the permission of my sister and I. The solicitors are now sorting out the paperwork for this.
    • RAS
    • By RAS 30th Sep 13, 3:28 PM
    • 27,995 Posts
    • 48,414 Thanks
    RAS
    Hi

    You need to ask some fairly determined questions about this.

    1. If you are to get 25% each of the value, who determines the value?
    2. How is the money to pay you to be released (since this is tied up in the house).
    3. I think a deed of variation would be the most sensible and safest option. Uncle gets life interest and you get a little more security.

    Note there was a thread her recently where a property was held as tenants in common. One parent died and the deceased's portion was life interest for the partner and held in trust for the offspring.

    The partner sold the property and then bought a new one without making any provision for the trust (in fact as joint tenant with new spouse); effectively disinheriting the children. This was possible because the partner was also the trustee and could therefore appoint and instruct the solicitor handling the sale.
    The person who has not made a mistake, has made nothing
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