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Joshua
Joshua, Lawyer
Category: UK Law
Satisfied Customers: 24551
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Brother in law had been made executor of his mothers estate,

Resolved Question:

Brother in law had been made executor of his mother's estate, worth, 1-2 million UK pounds. Only 2 brothers. When we visited for funeral from the US, only some of her extensive collection of exp. jewellry was there;her car was gone;her flat rented for last 3 years with no account, and all left in her account, less than 200, 000. Will specified no beneficiaries by name e.g. grand-daughters whom she doted on. My husband and i were on good terms with Mum.
Many of her valuable possessions were in b-i-laws house ( shared with new wife),and no sign of her collections of numerous works of art.
Help please-who can we approach to change executor, who has not even produced a copy of the will-says he's have to go and get it-from somewhere!
We strongly suspect she was coerced into changing the original whilst in early stages of dementia. Since she went into a home with severe dementia, b-i-lawhas bought an aston Martin, had 6 exp. foreign holidays; had numerous extravagant updates to his house.
Submitted: 1 year ago.
Category: UK Law
Expert:  Joshua replied 1 year ago.

Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Joshua :

May I clarify please that you have to date seen no copy of her will?

Joshua :

Do you know if your BIL has applied for probate - I would presume he has from some of the actions you refer to?

Joshua :

Thank you for your feedback however I should be grateful if you would delay leaving feedback until I have been able to assist you. I hope you can read my above posts?

Customer:

No, we have not seen a copy of her will.

Customer:

Re:Probate-b-i-l- told my husband that whilst we were over they'd have to get together to discuss it, but never did, and my husband forgot to ask face to face, but has e-mailed him, but no response yet.

Customer:

We know she had many stocks/shares etc. At one point, b-i-l- said she had enough money to stay at care home until she was 120-she just passed at 92; cost per month, around 5,000 pounds, which would have been covered by her pension which was around70,000/yr. ( Her husband was extremely successful, and very shrewd.

Joshua :

Thanks. The first step to consider is seeking a copy of your mother in law's will and a copy of the grant of probate. This is very straighforward however will need to be able to send a cheque denominated in GBP. Do you have access to a GBP cheque?

Customer:

It would have been SO uncharacteristic to not name her 3 g.daughters as beneficiaries, and leave them something special from her jewelry. She often showed it to them, and when they were younger ( now late 20's), she'd let them play dress up, and use pieces! According to b-i-l, she just left 20,000 to each and 20,000 to charity-unspecified. She used to reg. give them 5 or 10,000 for Xmas!!!

Customer:

Not a check, as we no longer have a UK bank account, but easily a money order or Westen Union

Customer:

order made out in GBP

Joshua :

OK to my knowledge probate registries do not accept credit cards and will not accept WU. Your bank should be able to issue a cheque denominated in GBP for a fee but failing which you may wish to consider appointing a solicitor in the UK at an early stage to assist you. May I assume you will be able to overcome the payment issue and advise how to go about obtaining a copy of the will etc initially?

Customer:

B-I-L was an accountant, but was fired from Managers position, and sev. other issues have arisen but been hushed up since was involved in positions of secretary/treasurer of Church/Golf Clubetc. M-i-l- was very upset obviously at these implications.

Customer:

Absolutely. We have asked for total val. of estate but fear much is gone

Customer:

Can we access m-i-l bank accounts, and will with former lawyer?

Customer:

Can we also access f-i-l ( died 1992) will and estate value?

Joshua :

Thanks. In order to obtain a copy of your MIL's will and grant of probate you need only write to any of the UK probate registries (addresses to follow) with a cheque for £6 stating your MILs full name, date of birth, date of death, last address, and if known place of death. A few days later they will despatch a copy of the will and grant of probate.

Joshua :

You can write to this address: Postal Searches and Copies Department
Leeds District Probate Registry
York House
York Place
Leeds
LS1 2BA

Joshua :

If you wish you can use this form but it is not compulsory.

Customer:

Would they fax it, given we're in US?, Is there a tel# XXXXX could call online do you think?

Joshua :

I have my doubts as they are rather traditional but they can be perfectly helpful so you may wish to give them a call on Monday UK office hours and ask them what they can do to assist.(NNN) NNN-NNNN6043

Joshua :

How you proceed from there depends on what you find in the will. If you find your husband is a joint executor then he can apply to be made a joint executor and will have a full right to obtain information from all of your MILs asset holders, e.g. banks etc to see what has been going on under authority of the Administration of Estates Act. If he is not an executor then what action he can depends on whether he is named as a beneficiary of the will or not...

Joshua :

If he is named as a beneficiary in the will then he has a right to obtain accounts and seek further information to back up those accounts from the executor. If he is not a beneficiary then he will need to consdier challenging the will. At this point you will need to consider appointing a solicitor to assist you

Joshua :

There are two possible bases on which your husband could raise a claim against the will if he is not named as a beneficiary (unless he was financially dependent upon his mother at the time of her death in which case there may be a third but I will assume this was not the case)

Joshua :

The two bases are undue influence or lack of testamentary capacity. Undue influence is a challenging case to establish because it must be proven and which involves the need to establish coercion. A recent description by Ward LJ in the Court of Appeal explains how Courts should view such claims :- “In all cases of undue influence the critical question is whether or not the persuasion or the advice, in other words, the influence, has invaded the free volition of the donor to accept or reject the persuasion or advice or withstand influence. The donor may be led but she must not be driven and her Will must be the offspring of her own volition, not a record of someone else. There is no undue influence unless the donor if she were free and informed could say “this is not my wish but I must do it”.

Customer:

Thanks! M-i-l sold house and bought appt on one spec day. Exactly 1 yr later to day, b-i-l- buys another house for himself-would this avoid Cap gains Tax?(By this time m-i-l is well into dementia, and def. incapable of knowing /asking what is going on. Also b-i-l- claimed mother told him he could keep rent for her appt, to pay for his efforts in helping her move!( Doubt she was aware it was rented) Extremely unlikely .M-i-l was generous, but over last 3 yrs, this amt equals 40, 000GBP. No, 99% sure husband is not executor

Joshua :

Undue influence will not be presumed and must be proven by the person alleging it has occurred. Establishing that the facts imply undue influence is insufficient. The facts must be shown to be inconsistent with any other conclusion. This can be quite a high hurdle.

Joshua :

For this reason most challenges are pursued on the grounds of a lack of testamentary capacity on the part of your MIL when she made the will. This can be easier to prove than undue influence particularly as there was a significant case of Gill v RSPCA which was a case involving a lady who left everything to the RSPCA disinheriting her daughter. The Court of Appeal found against the Will because Mrs Gill lacked knowledge and approval of its contents even though she had done her best to exclude her daughter. The Court of Appeal found that lack of knowledge and approval had been established, there was no need to consider the issue of undue influence.

Customer:

Have much evidence to assume rent is being paid in cash. As it's within 7 yrs of death, does this constitute a gift, and part of the estate please?

Joshua :

The first step however must be to obtain a copy of the will as above because without that you can have no way of knowing how you need to proceed. If it does end up as a claim against the estate following the above case, your husband may have a solid basis for a claim and may consider seeking costs of such a claim from his mothers estate.

Customer:

Can we contact m-i-l- lawyer, without being executor?

Joshua :

Re the rent it is really difficult to give any useful comment on this without knowing the facts. If the property is still within the estate then rent would be administration income and must be divided between beneficiaries. If it was gifted to BIL prior to MIL's death (questionable from what you say) then BIL would be entitled to the rent.

Customer:

What authority do we need to access b-i-l and his wife's bank accounts, or is this impossible?

Joshua :

You can contact MILs lawyer but he may be limited in what he can tell you. The starting point will always be the will and copy grant of probate as above.

Joshua :

I would be very happy to assist further once you have obtained this if you wish

Joshua :

I should be able to point you towards the next steps and the issue you should be considering at that point.

Joshua :

Is there anything above I can clarify for you?

Customer:

Just if we can call m-i-l- bank manager -would they release accounts to my husband if not executor?How do I reach you again if needed? You have been so very helpful! Thank-you!

Joshua :

I am afraid they will not unless he is an executor.

Joshua :

However he may have rights to information in other ways as briefly referred to above - it all comes back to the will initially


 

Customer:

Can we request he be an executor, or can we request we fire b-i-l and have an independant executor?

Joshua :

If I can assist any further you can ask for me by either clicking on my profile to ask a question or asking for me in the first line of your question as you prefer. I would be very pleased to assist further.

Joshua :

You can apply for him to be removed as executor however I am keen not to overload you with too much information. The problem at the moment is you have no idea what the position is in the will so cannot formulate a strategy. We would analyse every different possibility but you would likely go away more confused than when you started. It would be much better to begin to formulate a strateguy once you know what the facts are in the will. At that point there will usually be a relatively clear set of options available to you.

Joshua :

It shouldn't take long to obtain a copy as above. Perhaps we can speak again once you have it and should be able to fairly rapidly identify your BIL's best course of action. Generally I would suggest speed being of the essence because delay can make tracing assets increasing more laboursome.

Joshua :

Is there anything above I can clarify or assist you with any further?

Joshua, Lawyer
Category: UK Law
Satisfied Customers: 24551
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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LL.B (Hons), Higher Prof. Dip. Law & Practice