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Ask Clare Your Own Question
Clare
Clare, Solicitor
Category: UK Law
Satisfied Customers: 34277
Experience:  family solictor with 25 years experience
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My daughters were abandoned by their father over 30 years

Customer Question

Hi - My daughters were abandoned by their father over 30 years ago. Two years ago they were contacted by their fathers representative to advise he was terminally ill in hospital in England - we live in Scotland and that he wished to see them. My daughters visited their father twice in hospital before he died. Later they discovered that they and their children were named beneficiaries in his will together with three of the Trustees children. They were not notified by either of the Trustees that they were named in his will and only found out by applying for a copy of the Probate. One trustee was a friend of their father and the other a solicitor. Both Trustees have refused to correspond with my daughters or send on copies of the estate accounts. We currently have a complaint with the Legal Ombudsman against the firm for poor service however she is unable to progress my daughters claim against their fathers estate. We believe a fraud has been committed as it was clear their father intended them and their children to benefit from his estate. As we live in Scotland our solicitor is unable to progress this as she does not understand English Law. I would appreciate advice as to how they can proceed and 2.5 years later we are no further on.
JA: Because consumer protection law varies from place to place, can you tell me what state this is in?
Customer: It is an English Will as their father lived in Peterborough however both my daughters live in Scotland
JA: Have you talked to a lawyer yet?
Customer: Yes but their Scottish lawyer is not able to proceed as she does not have experience in English Law
JA: Anything else you want the lawyer to know before I connect you?
Customer: Obviously the situation is more complex that I can comment in this e-mail however this is a basic summary of the situation
Submitted: 5 months ago.
Category: UK Law
Customer: replied 5 months ago.
I should add apparently the term used in discretionary beneficiaries
Expert:  Nick H replied 5 months ago.

Hello

This is a very grave and concerning situation!

Having obtained the grant of probate - you know the valuation of the estate. If they are committing fraud and it appears that they are then this is a criminal offence and to be dealt with by the police.

You can also challenge the will and the executors under English Law - but the fees will be payable by there estate.

Yes this is complex - I would suggest that you contact the police - fraud squad - first. If the amount is for a largish sum then any firm will pursue it happily.

Customer: replied 5 months ago.
Hi. I was hoping for a more comprehensive answer before going to the police. We do not have the valuation of the estate only that probate was granted in May 2015 but this gave us no estate accounts. The solicitors involved advise that they do not have to provide us with any information at all as this is confidential to the trustees. Can you advise what if any information on the estate my daughters are entitled to receive as named beneficiaries in the will? Also the solicitors advise that my daughters and their children are only discretionary beneficiaries and this does not entitle them to settlement from the estate. It is at the Trustees discretion. My daughters and their five children have therefore been excluded by the Trustees in favour of one of the Trustees three children who are also named as discretionary beneficiaries. Would you still consider this to be a police matter as we believe this is fraudulent activity as no explanations have been given as to how the estate has been settled? Apologies but I am looking for some reassurance that this could be a police matter before we approach them directly. Could you also advise if you are aware of any successful cases where a discretionary beneficiary has challenged the decisions made by the Trustees in relation to the settlement of a will? Thank you for your assistance
Expert:  Nick H replied 5 months ago.

Hello again

If the trustees have an absolute discretion to pass the monies to which ever beneficiary they see fit then

they can claim that they have the power to do so.

It may be worth arguing that they still have a duty to act fairly towards the beneficiaries.

It may be that another expert can help you better if you require more detail.

I will opt out and allow another to advise.

Regards

Expert:  Clare replied 5 months ago.

Thank you for your question

If you have a copy of the Grant of Probate you can see the value of the estate - in small writing at the bottom.

What does the Will actually give to the girls?

Customer: replied 5 months ago.
Hi Claire. I don't have the documentation to hand at the moment. Is it okay if I get back to you on Monday with this? Thanks Gail
Expert:  Clare replied 5 months ago.

That is fine

Customer: replied 5 months ago.
Hi Claire,I checked the letter we received from the High Court in relation to the Probate but it doesn't give us any information on the estate just the date it was granted and the name of the solicitor who submitted it. We don't think it is a large estate probably somewhere in the region of about 50k but could be more we really don't know. Having read the will again it says "the beneficiaries shall mean my daughters Sionagh Thomson and Kathryn Thomson and their remoter issue and Jacob William Barnard, Eliza Mona Beniton-Smith and Will Nathaniel Benoiton-Smith and their remoter issue. My daughters and Sionagh and Kathryn Thomson and the one of the Trustees Colin Smith is the father of the other three children. On reading this again does this mean my daughters' children of which there are five also have a claim on the Estate? The will is described as a Discretionary Trust however my family appear to have been excluded in favour of the children of the Trustee. It is however clear that their father his daughters and grandchildren? to benefit from his estate.
Customer: replied 5 months ago.
As I said previously we currently have a complaint with the Legal Service Ombudsman however they can only look at "poor service" in relation to the Solicitor
Expert:  Clare replied 5 months ago.

Can you say what the wording of the actual gift is?

Customer: replied 5 months ago.
Sorry Claire the will is really confusing to me as it has been to our Scottish Solicitor. It gives powers to pay any debt, to invest any capital and income, the Distribution day is 125 years from the date of death. The beneficiaries are as already stated. It also states that "to apply for the benefit of any beneficiary as the Trustees think fit the whole or any part of the income or capital from that part of my estate to which such beneficiary is entitled or may in the future be entitled and on becoming absolutely entitled he or she shall bring into account any payments received under the clause" there is no mention of actual gifts. The will also gives the Trustees the power of appropriation under S41 of the Administration of Estates Act 1925. (Would this mean that there was property to sell?. The Trustees have been given absolute discretion to apportion or partition the estate as they see fit. What we have to bear in mind however is that my ex-husband was terminally ill and very sick at the time of signing this will. His friend the Trustee did not advise my daughters of their father's illness until the will had been signed and they only had their first contact with him towards the end of October just prior to his death. His sister was clear however that he had intended them to benefit financially from his estate.
Expert:  Clare replied 5 months ago.

How old are the other children?

Customer: replied 5 months ago.
The trustees children are 10, 5 and 2. My grandchildren are 13, 7, 7, 4 an 8 months
Expert:  Clare replied 5 months ago.

I really need to see the Will and the probate to give a meaningful answer I am afraid

have any monies been distributed at all?

Customer: replied 5 months ago.
Apologies Claire I just realised that I could upload the will to you
Customer: replied 5 months ago.
Having checked rightmove I think there may be a property as well
Customer: replied 5 months ago.
No monies have been distributed to our family. The solicitor has refused to correspond with us and answer any questions of provide information. We currently have a complaint sitting with the Legal Ombudsman
Expert:  Clare replied 5 months ago.

Excellent - that is helpful.

I assume that you have not seen any estate accounts?

Customer: replied 5 months ago.
No we have not received any information at all from either of the Trustees.
Expert:  Clare replied 5 months ago.

In fact the bulk of the Estate appears to be a mortgaged property.

I say this because the Probate shows that whilst the Gross value of the Estate is £325,000 the net Estate is £37,000.

This property is now held on a Discretionary Trust which can be used for the benefit of any or all of his children or grandchildren in whatever way his Trustees think fit.

This was almost certainly designed to protect the housing needs of the younger children although of course that is an assumption on my part

Whilst it is bad practise for the solicitors (who are also executors) not to have contacted to your children, not to have provided copies of the annual Trust accounts it is not fraud.

The starting point is to write a formal letter to the Senior partner at the firm pointing out that since they are also named as Executors and Trustees then the firm is under a duty to carry out that role properly - and that includes providing copies of the Estate Accounts and the annual Trust accounts; plus an indication of the basis on which the funds are being allocated

Some further information here

http://www.ashfords.co.uk/article/what-rights-does-a-beneficiary-have-to-trust-information

I hope that this is of assistance - please ask if you need further details

Customer: replied 5 months ago.
Hi Claire, Thank you for this. The reason we have been so concerned is that the Trustee (friend) advised us at the time we visited my ex-husband was that my ex-husband had insufficient funds to pay for his funeral. I even offered to contribute to the funeral costs. The same Trustee also advised that my ex-husband was renting a flat (which now actually may have been owned according to your information) . The Trustee then proceeded to clear out my ex-husbands flat when we were down there three weeks before my ex-husband actually passed away. The flat was marketed for rental before he died and without his knowledge or permission. The Trustee had no POA in place therefore no powers to make these decisions. We were appalled at his actions at the time, I mean who clears out the flat of a dying man and markets it for rental however we felt we had no locus to intervene. This person them stopped communicating with my daughters following their father's death and it was only six months later they found out from their aunt that they were named in his will. This is when they sent for the copy of will and probate and contacted both Trustees requesting the information you have outlined above. They did this in October 2015 and sent subsequent letters over the past two years which were never responded to. This is the basis of the complaint they now have with the legal ombudsman who can only look at the service provided by the Solicitor and not the actions of the other Trustee. We believe there was never any intent for my daughters to benefit from the estate as they would not have known that they were indeed beneficiaries. It has been complicated further by the fact that Scottish Law and English Law is different and our Scottish Solicitor was unable to purse matters on their behalf. Would it be your opinion that we should look to instruct an English Solicitor to ensure their interests are protected? One final question I have is to ask you to explain the figures outlined in the probate. Does this mean that he left a net estate of £37,000 in money and property and other assets worth £325,000? I had just assumed that these figures were averages used to define a lower and higher amount for Probate purposes. I would just finish Claire by saying we are not greedy unreasonable people. My daughter's had nothing from their father all their childhood and were decent enough to visit him at his request when he was dying. They didn't expect to receive anything from him however it would seem that other forces are determined that they will not benefit from this at all.