Jane D

[Peridot]

Hi JaneD,
Your sister is a dog with a bone! In my opinion the fact she is onto her 3rd solicitor is telling! The solicitor will be advising her and I would anticipate that advise would be to drop this unless she has proof, which from the sounds of it she doesn’t!
However they will of course take her instructions and may suggest make an offer but if nothing can be agreed blah blah blah. They will also have told her that mediation is recommended and I suspect she has decided such an offer should have the conditions attached.
it sounds like your solicitor has a handle on this and has or is about to respond appropriately.
The seeking judgment comments would be related to any court proceedings. Have you issued any proceedings or has she threatened to do so? Either way generally if a Court decides in favour of one party, then it is usual for the successful party to ask for a costs order against the other party. The court does have discretion when making any costs order and it is not always the case that the unsuccessful party pays all costs but you need to discuss this with your solicitor.
It appears your sister continues to be entrenched in her view and will not back down. Have you discussed with your solicitor whether making an application to remove her as executor would be appropriate?
Is there any evidence you could raise that would demonstrate your mother was in control of her finances prior to her stroke? Would there be anything in your mother’s medical records about her appetite, eating habits or comments on her care she received? Would it be worth obtaining copies of her records?
What is your solicitor now suggesting?

[Jane D]

Thank you. My solicitor sent them an email asking for a breakdown of the settlement money and costs but has asked me to see him on Tues as he says we need to respond sooner rather than later. I obtained my mum's medical records last year and got letters from the care agency to confirm their witnessing of money spent on mum's provisions. My sister has threatened court proceedings for two years and tried to do so under part 8 order rather than part 7. She's threatened to have me removed as executor (ironic considering I'm the one who has done all the admin etc for the probate). She demanded a forensic accountant which I initially agreed to then withdrew because she changed the perimeter of that agreement to include me agreeing to pay back money the accountant couldn't locate or deemed an unnecessary spend. The estate solicitor stated last May that if we had not come to an agreement by the end of June 2018 he would apply for an order 64. He didn't and hasn't even replied to my query as to how he was proceeding with it. The money she was arguing about was money spent during the POA and was not part of the estate. I offered to set aside the original amount she disputed £21,000. She upped this amount to £42,250! To now not allowing any money to be released. I have answered all of her questions on how the money was spent but she stated I had just padded out the budget to suit the withdrawals. I've just pressed for mediation because I believe it could be sorted out that way and the cost of a forensic accountant or court proceedings are totally unnecessary. I truly believe she knows mediation could resolve the issue but because she is determined to get money out of me she is refusing unless I agree to an investigation effectively enforcing court action without going to court. I will not agree to her settlement offer because I do not owe this money. The money was spent on my mum. She is now alleging there was more money spent than what she initially alleged. At the end of her settlement offer she states 'and this does not include money we havent even looked at' and she stated that it is not up to her to prove wrong doing on my part but that is the whole premise of the dispute! She made allegations of wrong doing she hasn't merely stated I've over spent she's stated I've spent mum's money for my own benefit. If it goes to court not only do I have the letter from the carers ( who catered for her before and after her stroke) but I can get testimonies from other people who visited her during the whole period she stayed with me. I took her to her bank to get the POA registered in the March 2015. I have a doctors letter stating the vascular dementia was as a result of the stroke and that she was mentally capable before her stroke. I also have video footage of her clearly showing she was compus mentis. Im quite prepared to defend my self in court if it comes to that it's just so unnecessary but she is irrational and as my solicitor says 'it's all about money with her' She has stated I've spent my inheritance early. My solicitor says what she is effectively saying is that she had earmarked money she believed was to be her's without taking into account the amount of money it would take to care for our mother. My solicitor hasn't suggested having her removed as executor we have kept pushing for mediation which she finally agreed to in May this year then suddenly came back with this offer. As I say she doesn't want mediation because I believe she knows it could be settled this way but she wants money.

[Jane D]

My sister's solicitors have made an offer to settle the dispute Under part 36 of the Civil Procedures act. The offer is unreasonable as its basically still insisting I pay back an amount I know I do not owe (half of what she claimed I owed). I have stated at the beginning of the dispute to the OPG and the estate solicitor that there was probably about £2,500 spent on mum that I cannot account for because I didn't keep receipts and that if the courts decided I needed to pay that back I would. My solicitor advices that I do not reject their offer or accept their offer for the reasons previously stated but to make a counter offer based on the deficite amount I cannot prove. We still expect her to refuse because as we say she wants me to pay back all the money that was withdrawn from mum's account during the time she lived with me regardless of the fact my mum was in charge of her own finances before her stroke and the money that was spent on mum that can definitely be proved. My solicitor states that the Civil Procedures 36 is a tactical move on their part and if I reject their offer and it goes to court I could be in a position whereby she could win on a technicality if I cannot account for the £2,500 regardless of my insistence that I have not spent it on myself. Her offer he states is irrational and we will not agree to it but he feels our counter offer based on realistic figures even if rejected would place us in a better position to argue our case if it goes to court because her figures do not add up and she is trying to include the period before mum's stroke when she had capacity. I must admit I was in bits because it felt I was in a no win situation but I also realise that the courts deal on facts and figures not feelings of injustice and principle so I kind of understand why my solicitor is suggesting I do this. I'm torn between what my solicitor advices and my family's reaction which is to outright reject as they believe she would take any kind of offer as an admission of guilt and give her grounds to insist on the full amount. Is my solicitor's advice good or do I have other options? I have always said that it just needs a judge to look at it and make a decision and I truly believe they will see the amounts she is demanding is unjust but I have tried to avoid court because of the unnecessary expense involved. Also, when they say 'pay back' do they mean to the estate or to my sister personally? I really don't know what's the best thing to do.

[Peridot]

Hi JaneD,
It may feel like a slap receiving this offer but it is tactical as there could be cost consequences should he matter go to Court and any settlement ordered is below a previous offer that had been rejected.
I would take your solicitors advice and counter offer. I appreciate it is really tough to do but holding onto a principle can be detrimental. If a larger award is not made by the court (if it went that far) any benefit of the Court finding in your favour could be lost due to the costs order that could be made against you.
Negotiations and offers can continue up to the Court door and are encouraged. Hopefully an agreement can be reached between the parties before too long.

[Jane D]

Many many thanks for your advice. I realise despite the feelings of injustice I must remove emotions from the situation and I really do want it to end sooner rather than later. I have told my solicitor that it's not about the money as I would rather give the £15,000 to the stroke or dementia society than have to pay it back based on her awful and untrue allegations. Is the settlement amount paid to my sister or is it paid back to the estate? It's an overspend on mum 's provisions not money I've spent on myself as she's claiming. I do feel that I have been so unfairly treated as I'm the one who did all the caring for mum (at a financial loss to myself) and my sister did nothing yet she's gaining from her untrue allegations anyway. I don't think I'll ever understand it and I truly believe there should be more advice for carer's before they take on the role because I would have done more to protect myself. Thank you again.

[Jane D]

I have reviewed my sister's letter of claim which dates back to 2017 and the sum they quoted not only included every penny that was withdrawn from my mother's account (never denied and includes pre-stroke) , which was used to pay for her provisions but this sum also includes money she believes I owe for rent my daughter should have paid to the estate for staying at my mum's bungalow (a free will agreement between my mum and daughter nothing to do with me) so her offer to settle is based on this amount being split in half. My argument is that I am not liable for my mum's pre-stroke spend as she was compus mentus and my sister's claiming otherwise and I'm not liable for the rent (my solicitor confirmed that the onus on proof about mum's mental capacity is for her to prove and I'm not liable for the rent that is a separate issue) her claim also doesn't take into account the sums that were transferred into her main bank account to top up the cost of her care package and are a proven fact. I'm I therefore being unreasonable in my counter offer to exclude pre-stroke, the rental money and money that was transferred into her other account? She disputed the food budget (the quantities) so I have taken the food and drink budget back to an unchallengable basic (£5 a day) and taken off laundry costs to me so I am prepared to repay £5,490 to the estate not the £15,000 she's offering which doesn't make sense. I have also stipulated that we pay our own costs. I have also sent a separate letter stating that I am still willing to do mediation. I'm trying hard to avoid a court case because I believe the cost is totally unnecessary but I'm not prepared to be bullied into paying back a riddulous amount based on her lies. What advice would you offer? I am aware that I have inundated you with questions and I am so grateful for the advice you give. If you would prefer I made a payment for advice I am happy to do so. I just don't want to make the wrong decision now after fighting this for three years. Many thanks.

[Peridot]

Hi,
it is reasonable to put in an offer that can be argued and glad you’ve got to this point.
You will need to consider what things you would be prepared to move on to reach an agreement. You aren’t a million miles apart and the cost of going to court will be considerable so have to be considered. Most solicitors would probably discourage you from going to Court on these figures I would say.
Keep going hopefully you can reach an agreement soon.

[Jane D]

I have made an offer and I am prepared to negotiate on reasonable and justifiable figures. I have also stated I am still prepared to do mediation. I cannot thank you enough for your advice and support. You have balstered me when I was ready to give up, which I am truly grateful for. Keep up the good work and I have already been recommending your site to people. Many thanks again and hopefully the next time I contact you will be to tell you it has been resolved.

[Jane D]

Well she's rejected my offer and not only now refusing mediation again but is not going to negotiate any further. My solicitor says we have reached an enpass and may now have to start legal proceedings ourselves. The only problem with that is because she is refusing to release any of the estate funds in an interim payment, which apparently is the norm and despite me stating I agree to set aside £30000 and she recently was prepared to accept £15,000) I am on a half pension. Do not qualify for legal aid as I am not on any benefits and I am also in a payment arrangement scheme to pay my solicitor as it is. I'm not able to pay for counsel to prepare papers. My solicitor says I have to come up with the money some how but I cannot get a loan as my credit rating is low. What can I do now? Does the estate solicitor have the power to do the interim payment regardless of her demand as the disputed sum would be set aside? She is being unreasonable and she has money so she is able to take action. It is not a level playing field. My family are not in a position to help. I can pay once the court decision is made so cannot understand why payment has to be upfront when Im not able to do so.
Kind Regards

[Jane D]

Hi,
I am at my wits end. I can do nothing now as my sister has blocked every available route to resolve this dispute. 1) She refuses to start the court action to prove her allegations 2) She refuses to mediate or negotiate a settlement 3) She refuses to set aside the disputed amount plus costs (I have agreed to £50,000) so an interim payment can be made which would give me the funds to take it to court 4) She is now blocking the estate solicitor from applying to the courts for a decision. Two weeks ago he said he would issue us both with a notice to apply for the order 64 (he said the same thing at the end of June 2018). Since then my sister has objected and told him he does not have the authority to do so? Is she right? As the independent legal representative of our late mother's estate surely he does have the power to ask the court to intervene especially as there is no agreement between us. My solicitor has sent him letters asking him why he's not applying. He is not responding. I don't have the funds to apply to the court myself and I don't qualify for exemption because I'm not on any benefits. She seems to have the power to hold the estate to ransome (the money in dispute was spent during the POA). It obviously now needs a court decision but I am powerless to do anything. Is there anyone I can contact for help? Can the estate be stuck like this indefinitely?

[des8]

Hi, been following your sad tale, and regret I can't give any meaningful advice.
However you said you were having problems funding your case, and I just wondered if you have legal expenses cover with your household insurance.
My apologies if you have already explored this avenue.

[SmurfEater]

Though I unfortunatelly can't give any advise that has not already previously been given I am so sorry to read you are having these troubles, I am in a similar position so I can empathise. If you need an offload to someone keep me in mind! Just make sure you are taking care of yourself in all this!

[Jane D]

Thank you Smurfeater your words are very much appreciated. This week has in fact been horrendous health wise. I was taken into hospital on Wednesday until Saturday with a severe gallbladder infection and yesterday my husband was rushed into hospital (he is having surgery as we speak) for a blockage in his liver. I know my nightmare will come to a conclusion eventually and at the end of the day I have so much to be grateful for. It is just the fact I seem powerless to do anything and we are now heading into year 4. I truly hope your situation gets resolved. I have been trying to find a forum with people going through the same situation because even though I'm having counselling the counsellor has no experience of this situation so her remedies are based on mental health activities like going for walks, breathing techniques to aid sleep etc. All very useful but not quite the same as talking to people who know and understand exactly how you feel. I'm here for you too ❤️

[Jane D]

Hi DES8,
Thank you for your suggestion. I haven't actually explored that avenue so I will definitely look into it x