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Joshua
Joshua, Lawyer
Category: UK Law
Satisfied Customers: 24527
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I would be grateful for advice on this matter.My sister

Customer Question

I would be grateful for advice on this matter.

My sister mother and I were appointed as executors for my father's will. The estate is to go to a discretionary trust with my mother as beneficiary during here lifetime and my sister and I potential beneficiaries later. The major asset to go to the trust was my father's share of the house owned jointly by my parents.

Unfortunately I was mistrustful of my sister for a range of reasons. I made clear to the solicitor acting jointly for us that I would require transparancy and expected this as I understand solicitors have an obligation to be non-partisan when acting for joint clients.

The house was sold before probate. I was suprised that as an executor I recieved no communication regarding the process of the sale. I had agreed verbally to the sale, but no paperwork regarding agreement to taking expenses from the assets of my fathers trust.

I now find that the house was sold with expenses deducted at source and the proceeds divided 50 50 between my mother and my father's assets. My sister has now sent me a letter from another solicitor demanding that I agree to payment of all the expenses from my father's estate with threats to take me to court if I dont agree to this. I asked the original solicitor for clarification on the process of the sale and copies of the documentation so that I could defend my position. He tells me that he is not able to discuss the sale of the house with me as he was acting for my mother and this information is confidential.

Surely the original solicitor could not reasonably engage in a seperate contract with a subset of the executors when I had expressly said that I needed complete transparancy regarding matters of the estate. Surely this is not compatible with any non-partisan obligation to me. This now leaves me without any clarity on how the house was sold and unable to defend myself and the estate against threats to take me to court if I do not agree to pay expenses which clearly are not owed.
Submitted: 1 year ago via InBrief.
Category: UK Law
Expert:  Alex J. replied 1 year ago.
Hi

Thank you for your question and welcome to Just Answer.

How much are the expenses? Have you seen any of the sale paper work?

Do you know how your mother and father owned the house? Was it as joint tenants or tenants in common?

Kind regards

AJ
Customer: replied 1 year ago.
Hello,

Thanks for your reply. The expenses are over £6000. split between estate agent, solicitor and the other house sale charges. These were taken 50 50 off my parents shares of the house proceeds. I was sent a copy of the completion statement yesterday when I pointed out that I needed to clarify this given I was being threatennned with court by my sister who wants the estate to pay all of it.
it. My father died two years ago. I queried why i had no details at the time, when the solicitor said he had forgotten but did not send anything. He did not say at the time that it was confidential.

I assume from reading that they were tenants in common if the will says my dad's share is to go to the trust. I dont know for sure this is the sort of thing I wanted to clarify but the solicitor says this is confidential.

Othere details are that my sister has power of attorney for my mother as she had for my father. My father told me that she had bullied him in to signing it. She was using it before it was registered and while he was very confused to sell his possessions (this is documented). These are some of the reasons I made clear that I wanted transparency and found it difficult to trust my sister. From details I do have I know know that my sister has been telling a huge pack of lies for a long time (doocumented).

Also, my sister and mother refused to show me any of the bank statements. I was told by office of probate that I needed to see them before being clear enough about the possibility of gifts to sign the probate document. Finally the original solicitor stood down from working for us as they would not agree to this. I finally got them recently after two years.

Is the solicitor entitled to refuse to give me this information. Given that I had made clear I would need transparency how could he have acted for my mother in a separate piece of work for the sale of the same asset which was confidential without asking me to agree to this.


Thanks
Customer: replied 1 year ago.
Relist: Other.
no answer given yet just asked for more information
Customer: replied 1 year ago.
Relist: No answer yet.
Expert:  Joshua replied 1 year ago.
Thanks for your question. Please kindly RATE my answer when you are satisfied

May I assist you with this question.

  1. Could you clarify please whether the solicitor in question has been instructed by you jointly with your mother and sister? i.e. have you signed terms of instruction with them?
  2. Do I understand that you did not sign the transfer deed in respect of the property sale?
Customer: replied 1 year ago.
I had agreed to the solicitor acting for us jointly for the probate. I had specified that I wanted to be copied in on all correspondance and the solicitor had agreed this (as my sister has pulled off a lot of 'stunts' behind my back). I had agreed verbally to the house being sold but not signed anything I expected to get copies of any documentation and would not have agreed to the transaction being confidential.

I dont know how it worked, I think my mother had status of 'legal owner' so it may have been ok, but as an executor I did not sign any deed for the house sale nor anything in writing allowing the solicitor to do the conveyancing. They now say they cant explain it to me as they were acting for my mother and it is confidential as I am not their client.

My question relates mostly to the solicitor code of practice re me as a client. I dont have objection to the house having been sold, just he way it was done and I was treated. As I had good reason to mistrust my sister I feel very shocked that my trust in the solicitor was misplaced.

The assets of the estate are the half share of the house and a small ISA, so there is no arguement that this was a separate issue.
Expert:  Joshua replied 1 year ago.
Thanks. It seems to me there are two related but separate strings to this. Firstly your relationship with the solicitor and secondly the position vis a vis the trust and house sale.

If the solicitors are acting for you they cannot keep matters from you in relation to any matter in which they act for you. Equally if a half share of the property is owned by the trust it cannot be sold without your signature on a transfer deed. On possible explanation for the solicitors action is possibly that the property does not belong to the trust. If it were owned by your mother and father as joint tenants then the property will pass to your mother automatically irrespective of what your fathers will says. In these circumstances it is possible that the property can be sold without the trustees consent but rather just on the say so of your mother. Equally the details of that transaction would be confidential to your mother.

It is possible for the solicitors to act for different members of the family but if it becomes apparent that there is a conflict of interest they must not continue to act. It is important to establish whether the property was part of the trust or whether it passed to your mother absolutely. Consider asking the solicitors what the position was and whether the property formed part of the trust or not. This is not confidential information as such as it can be ascertained from public records from the Land Registry. If the solicitors are refusing to disclose basic information and information regarding the trust consider a formal complaint followed by a referral to the legal Ombudsman who can make a determination in the matter.

With regards XXXXX XXXXX trust itself, all trustees must agree in order to make any decisions regarding trust property - if the property is part of the trust therefore it cannot be sold without your signature legally though in practice it is possible to deal with the property with just two trustees possibly though it is not a fully legal transfer unless all trustees sign the same. Trustees cannot independently of each other and must make joint decisions. In general terms a trustee can be removed if you can show one of the following:

they are guilty of dishonest conduct.
• If his conduct endangers the trust property;
• By failing to account properly to the beneficiaries;
• If he becomes insolvent;
• If he or she becomes incapacitated;

Other circumstances in which a trustee can be removed is under in express power to remove in the trust deed and under the following circumstances as a result of s36 Trustee Act which provides that a Trustee may be removed where he:

(a) is dead;
(b) remains out of the UK for more than 12 months;
(c) wishes to be discharged;
(d) refuses to act;
(e) is unfit to act;
(f) is incapable of acting; or
(g) is an infant

A personality clash or a falling-out between trustees or between trustee and beneficiaries or a simple misunderstanding between them is unlikely to amount to sufficient grounds for removal, unless there is a threat to the trust assets as a consequence. A court can however remove a trustee if it sees this as necessary to restore order to the administration of the trust. An application can be made under the Administration of Justice Act 1985

Is there anything else I can help you with?
Customer: replied 1 year ago.
Hello, thank you, XXXXX XXXXX very helpful, but not quite the position.

It is clear that the house was half the asset of the estate and the proceeds were to go to the trust. In this case I assume my parents must have been tenants in common. I cant know this for sure as they will not discuss it with me.

However, we have not yet completed probate. My sister mother I and the solicitor were all executors at the time of the sale and destined to be trustees after probate was completed. Is the position the same regarding need for signature of all the executors to be a legal sale if probate has not yet completed?

My feeling is that the solicitor was far from meeting any commitment to work for me on a reasonble/transparant/non-partisan basis. Would this fall into the professional misconduct catagory. Eventually the solicitor did stand down, but had asked all the executors/trustees to pass control of the estate to their management before doing this. In retrospect this compounds my horror that they asked this after having acted in a way which seems to have breached any possible trust I could have in them as acting reasonably towards me as a client.

At the time of the sale of the house my mother said that my sister had told her I was standing in the way of her getting money owed to her as she expected to be given all the proceeds of the house sale, rather than half of it passing to the trust. At the time I dismissed it as making no sense. In retrospect I think they hoped they would grab all the cash and bypass the will and the trust. This is my difficulty with the solicitor not being straight with me. I know from various notes that my sister has told a huge pack of lies including that I suffer from a mental illness and therfore repeated professionals should not discuss things with me as the would not 'want to upset me'. This has no foundation. I think it is incumbent on a solicitor to ask for evidence of this which would not be available as it is part of a concerted effort of lies and manipulation. I think the solicitor is basically honest and straightforward, but has been manipulated and misled by my sister to a point where his professional conduct does not seem tenable. His fault is probably that he has been gullible and easily submitted to pressure from my sister to work to her agenda.
Expert:  Joshua replied 1 year ago.
I do not quite understand your comment about the solicitor asking that the estate was passed to their management. Could you elaborate on this a little please?
Customer: replied 1 year ago.
In parallel with this was an ongoing conflict with my sister. My father had an enduring power of attorney with my sister and I jointly. I was removed from this. The only explanation given to me was from my father who said that he had been bullied into signing it and it was easiest to give my sister what she wanted. The solicitor did not inform me of this and when I found out refused to discuss it with me as I was not their client. My sister then sold all posessions car and put the house up for sale before the new LPA for finance was register and while my father was very confused in hospital with MMSE documented as 12/30, disoriented in place such that he believed he was on a ship. My sister claimed that my father had signed an agreement to this which she copied to me. My father denied that he had signed it or agreed to it. At the time he is alleged to have signed it MMSE records that he was not able to write at all. In my view it doesnt look much like his normal signature either..

When I was asked to sign probate documents I needed to sign with regard reciept of gifts and loans. Advice from office of probate were that I shold not sign without confidence this was correct. I therefore asked to see bank statements for the time my sister had been Power of Attorney. She refused to show me (my father had been upset that she would not show him his bank statements either). The solicitor acting for the probate did not clarify to my sister that the only way forward was to show me the statements, but took the view that I should sign anyway in what was clearly a conflict. When we were clearly at an impasse over this they said that they would not be able to act for us unless. 1) I agreed to sign without seeing the statements 2)we all stood down and allowed the practice to manage the estate. I did not agree to either, but things were overtaken when I queried why I had not recieved any documentation re: the house sale. The solicitor said he 'forgot' but did not tell me that it was confidential as he had not been acting for me (I only know this two years on). Suddenly they did stand down regardless at that point.
Expert:  Joshua replied 1 year ago.
I am a little uncomfortable with your assumptions in respect of tenants in common. This particular fact is key as much flows from it and you will want to ascertain the position for certain. As above there is no reason the solicitors should not disclose it to you as it is a matter of public record and cannot be confidential but if they will not you can as a quick fix contact the land registry and ask them for an historical copy of the title register for your parents property as at your fathers passing. This will reveal the ownership arrangement.

If the property was tenants in common as you believe it is unlikely they would have been able to complete the sale without a grant of probate and it follows therefore without your signature.

There are clearly some issues with regards XXXXX XXXXX solicitors actions which may be a misunderstanding or may point to something more concerning. Consider request a meeting with the solicitor involved and the complaints partner to discuss your concerns. If you are a client and you are not satisfied then you have a right to refer the matter to the Legal Ombudsman

You will wish to consider dependent upon the outcome of the above meeting instructing your own solicitor. As trustee you can consider doing so and looking to the trust for your costs in this respect if the advice is in relation to your work as a trustee. This solicitor can assist you in respect of the above issues that are concerning you.

If you suspect financial abuse on the part of your sister under the PoA you can make a complaint to the Office of the Public Guardian who have the power to investigate such complaints and make orders where necessary.

Does the above answer all your questions or is there anything I can clarify or help with any further?
Customer: replied 1 year ago.
I understand that if they had been joint tenants the whole house would have passed to my mother on my father's death. In fact the will was set up so that my father's share would go to his discretionary trust and the money for this half share is now held by the solicitor waiting to go to the trust when probate is copleted. On this basis I think they could not have been joint tenants.

On the assumption that they were tenants in common the solicitor seems to believe there was a legal way of selling the house before probate which did not include my signature or even written areement for them to act. Are you saying this was not the case and the sale may not be legal or technically legal?

As you say this is something I can follow up through public records if they wont tell me, but will obviously take some time.

Thanks for the other advice.
Expert:  Joshua replied 1 year ago.
You may be surprised how many wills are prepared in this way and the solicitor or person preparing the will forgets to sever the joint tenancy. It is very dangerous to make the assumption you make here. Consider obtaining clarity via the solicitors or failing which the Land Registry - it is very easy to obtain a copy of the register as above.

It is possible to dispose of the legal title technically but it would not overcome the trust so it is not a fully effective transfer and the solicitor should not be involved in trying to circumvent a trust in any event particularly where you are his client.

The place to start would be ascertaining ownership and from there you can act based on some solid facts and consider some of the above steps as necessary

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me.
Joshua, Lawyer
Category: UK Law
Satisfied Customers: 24527
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and 4 other UK Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you for your excellent answers. I will check this with the Land Registry. If the solicitor forgot to sever the joint tenancy my sister might have grounds to be arguing she can grab the money, which would be alarming and I would not want to open that can of worms!
Expert:  Joshua replied 1 year ago.
If it was forgotten then firstly the property would belong to your mother not your sister and second as trustee you may have a claim for negligence against the will writer or solicitor that prepared the will though such a claim is not entirely straightforward.

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