Probate Battle

[SmurfEater]

I have a Contentious Probate battle going on which unfortunately has caused irreparable damage between family members, I am trying to save estate money by not going to court but unfortunately, it appears I now have no option but to apply to court to propound the Will.

I was wondering if anyone could shed some light on some questions please?

• Do beneficiaries have a right to see Will before Probate?
• After Caveat Appearance has been made whose responsibility is it to provide evidence of capacity, named Executor or person who enters Caveat?
• Do I need to agree to disclosure of 'all' social work records even if there may be confidential information concerning myself that I don’t want to be disclosed, or can I insist just records pertinent to time of Will writing?
• Do I need to agree to mediate as I feel all my requests in the past have been ignored and I still have not been given a subject to mediate over? All communication through solicitors now seem to have been exhausted.
• As executor, without probate, is it my duty to preserve the estate? (ie not improve it; just maintain it)
• Do I still have the right, as named Executor on Will, to use funds from the rental of deceased property for its essential repairs to keep up to rental standards?
• Is there any relevance to EPOA records during my time as Attorney to propounding the Will?

Thank you in anticipation.

[Peridot]

Hi Smurfeater,
I'll try and deal with your queries in order. Has the caveat been renewed? It can be renewed every 6 months provided the renewal is applied for in the last month of the previous 6 month caveat.

• Before Probate is granted it is up to the Executor whether they provide a copy of the Will to Beneficiaries. Once a Grant has been issued the document is public, so if the Executor refuses to provide a copy then the beneficiaries can apply for copies themselves from the Probate Registry. Of course it is always better if this can be agreed with the executors, but it isn't always that simple.
• If the executor is claiming that the Will is valid for example that the person had full mental capacity to prepare and execute the Will and they have evidence to show that, then it is in their interest to provide that evidence. The Courts are keen on parties co-operating, so if information exists that assists then it is right to provide it. Refusal to co-operate on principle, wouldn't go down well with the Courts.
• If the records are in relation to the deceased then they are technically no longer confidential after death. Would the entries in relation to you make any difference to the issue of whether the Will was valid or not? You could request that details identifying you, that are not pertinent to the issue of the Will are redacted. Bear in mind that if the matter goes to Court the records could be ordered to be disclosed in any event. Refusal may lead people to suspect there is something to hide. If it is possible to agree the disclosure, but with personal reference to you (provided not relevant to the Will preparation) is redacted beforehand, that may be the most sensible route. Have you obtained the records yourself? Could you redact, but keeping a clean copy, in case the Court ordered the whole record set be disclosed at a later date?
• I would always leave the offer of mediation on the table. It demonstrates to the Court that you have been reasonable throughout and wish to resolve the issues.
• Technically, in the usual course of things, as an executor your duties would arise from the Will, so at the death of the testator, all assets should be preserved for the beneficiaries. However, where there is a disputed Will there remains a question over who is the legitimate executor/administrator to take this role. It is possible to obtain a temporary Grant to enable the appointed person to preserve assets and deal with liabilities, although this is usually once the parties to the potential claim have agreed to do this. You would need to take some face to face advice on this to establish if this is the best course of action in the circumstances.
• I refer to the response above concerning temporary Grants, which would then enable the 'temporary' executor to deal with this aspect, without fear of repercussions.
• An attorney's duties end at the death of the donor. However, it is always advisable to retain all documentation relating to the deceased's finances etc if you have been acting as their attorney. Although the executor is only interested in the assets at the date the person died, if any queries were raised eg there was an allegation some funds had been misappropriated then questions could be raised with the Office of the Public Guardian who could ask for site of accounts etc. Retaining these records would be sensible to enable the attorney to demonstrate they acted
  in the donor's best interests,
  at all times. This is particularly important in this situation, as you are already aware the other party has issues with the Will. They could make other allegations so best to have everything to hand.

I hope this helps, it would be sensible to get some formal advice as soon as possible.

[SmurfEater]

This is still ongoing, I've provided all that I've been asked to supply, including complete unredacted set of social work records and medical records, and there is no evidence at all of lack of capacity, I have also provided all my EPOA records, which were maticulously recorded, so I'm confident of no come back regarding these, but alas, other side have still not provided any evidence or proof of reasoning for raising caveat.

There is another benefitiary to the Will, who apparently is represented by the same solicitor, but surely this means there is a conflict of interest as if Will is proven invalid then the estate would be split down the middle and the other benefitiary would recieve nothing?

I have asked for evidence and asked many questions, as to why Caveat was raised, but all requests have been ignored. I know we would be expected to mediate before court, but as there is no evidence and I feel strongly that the Will should stand as it was written, how can I possibly negotiate when due to all this I owe £20K in solicitors fees?

Should the third benefitiary be involved in mediation as they are supposedly represented by same solicitor? I ask this as if Will is proven invalid, they do not recieve anything, and this was not what was requested in the Will.

I asked for mediation, which has eventually been agreed, but distance is approx 3 hours away, I asked my solicitor if we could have telephone mediation, but he said he would not take part in this type of mediation, but we could meet in the middle. Unfortunately, costs for mediation, plus his time and travel to get there would prove very costly, therefore do you have any suggestions?

I would prefer not to go to court as my solicitor has said it is likely to cost in excess of 20K to do so, but I just can't see any other way around this, is there any other route you feel I could take?

Many Thanks for you kind attention.

[SmurfEater]

I have now applied for a Limited Grant as I am constantly asked by my siblings solicitor for Full Estate Accounts prior to acceptance of mediation, I have kept records of everything but I was wondering if anyone could point me in the direction of any Executor Software I could use to complete these records myself in the correct format?

[Peridot]

Hi smurfeater,
afraid I don’t know of any software, excel spreadsheet is all I can suggest I’m afraid. Basic book keeping layout is normally what you see if preparing estate accounts.
if you are intending on dealing with pre death figures these would be a separate document and not part of any estate accounts.
estate accounts deal with all assets and liabilities on the date of death for the purpose of obtaining probate.
During the administration period ie up to the finalising of the estate and distribution of legacies date another set of accounts are prepared.
sorry I don’t have any other suggestion other than asking an accountant maybe?

[SmurfEater]

Thank you for your prompt reply! I think after all this time and trouble it will be worth me getting an accountant to look over my spreadsheet and work out any taxes due just to make sure I haven't overlooked anything.

[SmurfEater]

Due to your ongoing help Limited Grant has now been obtained and an accountant is preparing estate accounts.

I was wondering if you could possibly shed some light onto whether monies gained from a tenant in deceased house, after they passed away, gets awarded to the person who is sole benefitiary of the house, or to the beneficiaries who had been left the residue of the estate?

Many Thanks