Troublesome Executors not abiding by Will

[Openlaw15]

Re: Troublesome Executors not abiding by Will

Recently my Uncle passed away (his wife passed away 4 years ago) and they had no children. The estate is left to 5 nieces and nephews and a long term friend. The estate is not complex in my opinion. 97.5 % is made up of cash and two properties the remaining 2.5% premium bonds , a few shares, post office account and a couple of refunds BUPA and tax. Two of the executors have a right to buy the properties at the value set by the probate valuer.

I have a number of concerns
1 - Verbal wishes with no signed documentation - the two executors have given away some additional cash that was withdrawn from the bank before my uncle died. One executor had Power of Attorney over his bank account. This cash was given to a pecuniary beneficiary in the will in addition to the amount they were due under the will. They have also given cash away from the amounts withdrawn to other people. None of this is contained in the will.

2 - An executor has also given his son my uncles BMW on the basis of a verbal wish. His other car was given to somebody else but that was contained in the will.

3 - The executors have paid the Inheritance tax late and a penalty has been imposed. I believe they have delayed settlement of the estate to give them the maximum time to resolve whether they can afford to buy the houses. The estate is not complex

4 - One of the executors is using his sons partner to deal with the probate - she is an accountant - so again I would not expect this to be a difficult estate to deal with and deliver documents in a timely fashion - certainly not late.

5 - I have asked what fee was agreed before the accountant was engaged and have been told that the accountant will tell us what that is when the estate is settled. Surely executors would want to agree a fee before work starts?

6 - Chattels - The will clearly states these are to be given to the beneficiaries of the residuary estate. I went to chosse some items but was told that my uncle had verbally said to the executors that he would like them to have certain items. Five and a half months after my uncle died they have come up with a verbal list of my uncles wishes. This is their own list made in discussion with my uncle before he died. The list was created, according to the excel creation date, 5 months after he died. Needless to say this is unsigned and only witnessed by the executors of the will. Nobody was independent and all were beneficiaries under the will.

7 - One worrying concern that I have is that my Uncles credit card was overpaid by some £5,750 - not a small amount of money. I cannot see how this could have happened as for the last few months of his life he was very unwell and not mobile. As I said one of the executors had power of attorney over the bank accounts and I fail to see what circumstances - apart from total incompetence - how this could arise.

During the period of administration I have frequently asked for updates as they has provided none voluntarily. They have now decided that I must wait till Probate is granted before they will provide further info. I know that is their legal right but also I think it is common practice to provide information and possibly interim accounts so that questions and queries can be resolved at the time rather than at the end of administration.

Where do I go from here? I have researched certain aspects of what they have done and most seems not be be correct.

Your expert advice appreciated. Thanks

If the executor is not a beneficiary, is the executor's son a beneficiary? What evidence is there that there was a verbal wish to grant the executor's son the BMW? Gifts in Wills or without Wills must meet the formality tests. In its absence, the gift goes back to the estate.

- - - Updated - - -

Might have the terminology incorrect but timings are
Uncle died Feb 2015
Executors applied for Probate a few days later.
IHT paid and forms submitted end of August (actually 2nd September missing the deadline for submission to avoid interest)
HMRC agreed IHT with a clearance letter 9th Nov 2015.
Therefore 6 months have passed since clearance from HMRC and 15 months since Probate applied for.

Seeing as 50% of the estate was cash, 48% two properties one of which two executors are buying it really is not that complex. There are no mortgages on either of the two properties.

I am not bothered about removing the executors I just want them to get off their backside. Their delay in not even making an interim distribution is costing beneficiaries money and from what I can see there is no reason.

An executor must act reasonably, as there is a relationship of trust they likely owe any beneficiaries a duty. If they have breached their duty the beneficiaries could potentially take action against executors for damages/ their losses.

[bigbadger]

Re: Troublesome Executors not abiding by Will

The executor is a beneficiary. The executors son is not. There is no physical evidence - the executors (of which there are 3) said that two executors (also both beneficiaries) of the will took notes of some verbal wishes from my uncle before he died. These verbal wishes were sent to me 5 months after my uncle died when I found out about the missing BMW. The notes were done in MS Word and the creation date of the document were about 4 1/2 months after my uncle died.

I have repeatedly emailed the executors since January stating that an interim distribution would be beneficial particularly to the non UK based residuary beneficiaries due to the fall of the pound. At one point I was giving them daily losses incurred by not making that interim distribution. As I said £250k has been sitting in the executors account whilst the GBP has fallen.

[Openlaw15]

Re: Troublesome Executors not abiding by Will

The executor is a beneficiary. The executors son is not. There is no physical evidence - the executors (of which there are 3) said that two executors (also both beneficiaries) of the will took notes of some verbal wishes from my uncle before he died. These verbal wishes were sent to me 5 months after my uncle died when I found out about the missing BMW. The notes were done in MS Word and the creation date of the document were about 4 1/2 months after my uncle died.

I have repeatedly emailed the executors since January stating that an interim distribution would be beneficial particularly to the non UK based residuary beneficiaries due to the fall of the pound. At one point I was giving them daily losses incurred by not making that interim distribution. As I said £250k has been sitting in the executors account whilst the GBP has fallen.

You say wishes, are you sure? Please careful with the terms you use when explaining. As far as am aware if it were only a wish, it shouldn't count. A wish is simply not a command, order or instruction. Do you have a copy of these notes?

A person who makes a statement about passing on gifts in their death is legal, ie they need not be passed through any Will, however it does require proof of the person's intent at the time. There is what is called the '3 certainties:' ie intent (what they intended), object (beneficiary), and subject (gift). In general, a person may make promises to certain friends and family about interests in property (ie land, homes), cars etc. However, they're more likely to be in situations whilst the person is in a relationship with them and certainly not at death's door. I suppose my question is, why were the executors taking instruction, why wasn't the potential beneficiary told independently, ie at some point whilst the testator (Will maker) was of good health in mind and body? My other question is why weren't these alleged gifts in the Will itself? It would have been quite east to attach a document to the main Will called a codicil if the BMW etc were a late development. What was the state of mind of your uncle whilst he was making these apparent 'wishes' is the legal question, furthermore.

[bigbadger]

Re: Troublesome Executors not abiding by Will

This was all verbal. He was having morphine at the time before he died to relieve pain and I fully know the affect that can have Two executors (also beneficiaries) made some notes of these conversations (wishes?) shortly before my uncle died. This included the BMW and some ready cash £2500 "in the house" and various other chattels that I am told he wanted people to have. His will was last amended in October 2014 just over three months before he died. NONE of this is in his will. My point when I found out about the BMW was that he also had a VW which is specifically itemised in the will. Of course I have no issue with the VW nor can I with that in any way. The "notes" were sent to me five months after my uncle died. The notes made by the executors stated that executor 1 to have priority over anything she wanted and executor 2 some specific items and a choice of anything else. The WILL states that chattels should be distributed to the beneficiaries of the residuary estate. It refers to any written memo or wishes of his. There is no document written or signed by him. I am sort of accepting all of this. My main point is that since clearance from HMRC in Nov 2015 cash has been sitting around - now for six months - doing nothing. My repeated request for an interim distribution which would give two of the beneficiaries the option to convert their GBP into whatever currency they want has been ignored. They ignore the fact an interim payment could have mitigated the losses. I am not asking them to convert pounds, take any currency risk or anything else within the estate. Merely to make the partial distribution which will allow the two beneficiaries to decide for themselves what to do. There has been no benefit to having those funds sitting in a bank account doing nothing. The non-action of the executors either by not making the distribution or explaining why has resulted in losses which I consider is directly attributable to them. They were fast enough to give the ready cash to people (including a beneficiary)and BMW away to the executors son - 2 months or less after my uncle died. I also believe cash is not a chattel and they have acted illegally. If they had been open and honest from the outset instead of keeping things secret then perhaps my actions would be different. My suspicious mind is also concerned about how his credit card was overpaid by nearly £6000 (yes it had a credit balance on) when one of the executors had a power of attorney over his bank account. My uncle spent very little and certainly over the last few months before he died he was very immobile. All these things combined raise some nasty questions.

[Openlaw15]

Re: Troublesome Executors not abiding by Will

This was all verbal. He was having morphine at the time before he died to relieve pain and I fully know the affect that can have Two executors (also beneficiaries) made some notes of these conversations (wishes?) shortly before my uncle died. This included the BMW and some ready cash £2500 "in the house" and various other chattels that I am told he wanted people to have. His will was last amended in October 2014 just over three months before he died. NONE of this is in his will. My point when I found out about the BMW was that he also had a VW which is specifically itemised in the will. Of course I have no issue with the VW nor can I with that in any way. The "notes" were sent to me five months after my uncle died. The notes made by the executors stated that executor 1 to have priority over anything she wanted and executor 2 some specific items and a choice of anything else. The WILL states that chattels should be distributed to the beneficiaries of the residuary estate. It refers to any written memo or wishes of his. There is no document written or signed by him. I am sort of accepting all of this. My main point is that since clearance from HMRC in Nov 2015 cash has been sitting around - now for six months - doing nothing. My repeated request for an interim distribution which would give two of the beneficiaries the option to convert their GBP into whatever currency they want has been ignored. They ignore the fact an interim payment could have mitigated the losses. I am not asking them to convert pounds, take any currency risk or anything else within the estate. Merely to make the partial distribution which will allow the two beneficiaries to decide for themselves what to do. There has been no benefit to having those funds sitting in a bank account doing nothing. The non-action of the executors either by not making the distribution or explaining why has resulted in losses which I consider is directly attributable to them. They were fast enough to give the ready cash to people (including a beneficiary)and BMW away to the executors son - 2 months or less after my uncle died. I also believe cash is not a chattel and they have acted illegally. If they had been open and honest from the outset instead of keeping things secret then perhaps my actions would be different. My suspicious mind is also concerned about how his credit card was overpaid by nearly £6000 (yes it had a credit balance on) when one of the executors had a power of attorney over his bank account. My uncle spent very little and certainly over the last few months before he died he was very immobile. All these things combined raise some nasty questions.

If the testator were under morphine, it is unlikely he could have had clarity of mind so by itself it is arguable to say he did not have legal capacity at the time of making the alleged wishes to the executors. It seems like an abuse of power by the executor 1 to choose priority over everything she wanted and the same for executor 2 having choices.

There is no writing to indicate consent, there is no signature which normally wouldn't be an issue however it is definitely a serious issue under the testator's likely duress and or under the influence of morphine, which I assume is for pain relief relating to his disease or seriously ill health. A Will would not be valid if the person did not have legal capacity. I think the Will withstands any so-called verbal statements made when under the influence of morphine. It's up to you how you want to proceed though. The acts by the executors are potentially criminal, ie fraud (untrue statement by testator for executors' gain) and or theft (misappropriation of chattel), Joint enterprise or aid and abetting, and or harassment (Harassment Act), or Conspiracy.