Executors Duty to Follow Terms of a Will

[basa48]

Re: Executors Duty to Follow Terms of a Will

Thanks for responding Johnboy.

In your opinion would a small claims court dismiss this claim as not within its remit. The amount of the shortfall is well within what a small claims court can consider.

Can you point me to the actual legislation covering such rules or is it a case of general case law?

[Johnboy007]

Re: Executors Duty to Follow Terms of a Will

Hi Basa,
Wills are only covered by the probate court.
A small claims court would not hear the case.

This is the Administration of Estates Act 1925.
http://www.legislation.gov.uk/ukpga/Geo5/15-16/23

It's a long read my friend.

[basa48]

Re: Executors Duty to Follow Terms of a Will

Hi Basa,
Wills are only covered by the probate court.
A small claims court would not hear the case.

This is the Administration of Estates Act 1925.
http://www.legislation.gov.uk/ukpga/Geo5/15-16/23

It's a long read my friend.

I thought probably not, thanks anyway.

I tried to wade through that Act, someway through I began to lose the will to live (pun intended) !

[Johnboy007]

Re: Executors Duty to Follow Terms of a Will

I thought probably not, thanks anyway.

I tried to wade through that Act, someway through I began to lose the will to live (pun intended) !

I think you're just putting on an Act (pun intended) to impress me.

[basa48]

Re: Executors Duty to Follow Terms of a Will

Hi Basa,
Wills are only covered by the probate court.
A small claims court would not hear the case.

Thinking on (in desparation!!??)

This isn't really a matter of probate. I assume probate was granted before the distribution of assets and is now just a matter of recovering an outstanding sum from the executor.

[enquirer]

Re: Executors Duty to Follow Terms of a Will

The executor is also a beneficiary (of the residue). I assume this is a ploy to increase his share.

I guessed as much. Content aside, has the note itself been verified as genuine? Is it in the handwriting of the deceased?

[Johnboy007]

Re: Executors Duty to Follow Terms of a Will

I guessed as much. Content aside, has the note itself been verified as genuine? Is it in the handwriting of the deceased?

It does not really matter at this stage.
The executor did not fulfil his legal duty to carry out the wishes of the deceased, according to the will, (fact).
It is a legal requirement, and must be carried out.
If the executor thought that the alleged loan was a debt, he should have contacted the probate office for guidance.
As there is no signed agreement, then he should never have took it upon himself to make that judgement.
The note stated, 'until the sale of the house' (or words to that effect).
The house had not been sold, so the executor was jumping the gun there.
He has to prove that the debt existed, before making any deductions.
He could be in trouble, as it could be considered an act of fraud.
Time limit for a beneficiary making a claim against an estate, is 12 years from the date of death.
For fraud reasons, there is no time limit.

[basa48]

Re: Executors Duty to Follow Terms of a Will

It does not really matter at this stage.
The executor did not fulfil his legal duty to carry out the wishes of the deceased, according to the will, (fact).
It is a legal requirement, and must be carried out.
If the executor thought that the alleged loan was a debt, he should have contacted the probate office for guidance.
As there is no signed agreement, then he should never have took it upon himself to make that judgement.
The note stated, 'until the sale of the house' (or words to that effect).
The house had not been sold, so the executor was jumping the gun there.
He has to prove that the debt existed, before making any deductions.
He could be in trouble, as it could be considered an act of fraud.
Time limit for a beneficiary making a claim against an estate, is 12 years from the date of death.
For fraud reasons, there is no time limit.

Thanks for that.

I am still wondering which would be the best course from here.

The executor has ignored my first warning shot that he is legally obliged to honour the terms of the will as written.

My next was to threaten legal or 'other' action to recover this sum. Legal being a small claim, 'other' being a complaint to the District Probate Registry.

I also have discovered he has 'sold' (or at least transferred the title of) the testators house for, I would estimate £50,000, less than the market value. I assume that as the two joint executors benefited from the residual value of the estate they have therefore saved the difference between 1% and 3% stamp duty.

[basa48]

Re: Executors Duty to Follow Terms of a Will

I spoke too soon that the executor disregarded my first letter, I have today received a cheque for the full amount

Now I'm thinking he gave in too easily. Is he trying to hide something my further investigations might uncover ??

[Johnboy007]

Re: Executors Duty to Follow Terms of a Will

I spoke too soon that the executor disregarded my first letter, I have today received a cheque for the full amount

Now I'm thinking he gave in too easily. Is he trying to hide something my further investigations might uncover ??

Listen mate, grab your money and enjoy it.......
I hope that we on LB have in some way been of assistance.
Thanks for letting us know the end result.....

[enaid]

Re: Executors Duty to Follow Terms of a Will

I spoke too soon that the executor disregarded my first letter, I have today received a cheque for the full amount

Now I'm thinking he gave in too easily. Is he trying to hide something my further investigations might uncover ??

I would leave it if it were me in this situation. If you have opened a can of worms getting involved will only cause more upset. Just my opinion of course, if you have the full amount (and I mean hang fire till the cheque is cleared) I would let things lie, if they have acted wrongly in any of the dealings with the estate then it should have been picked up at probate point as that is what probate is for.
Enaid x

[basa48]

Re: Executors Duty to Follow Terms of a Will

Listen mate, grab your money and enjoy it.......
I hope that we on LB have in some way been of assistance.
Thanks for letting us know the end result.....

The cheque goes in tomorrow !!

LB is ALWAYS of great assistance. I don't post much because I am not well qualified in legal matters (although I've had a few successes).

[basa48]

Re: Executors Duty to Follow Terms of a Will

I would leave it if it were me in this situation. If you have opened a can of worms getting involved will only cause more upset. Just my opinion of course, if you have the full amount (and I mean hang fire till the cheque is cleared) I would let things lie, if they have acted wrongly in any of the dealings with the estate then it should have been picked up at probate point as that is what probate is for.
Enaid x

I wasn't going to get more involved, but I might just pass a heads up to some appropriate organisations. It's up to them then if they want to follow it up. :tinysmile_twink_t2:

Thanks to everyone for their advice.