Jane D

[Jane D]

I am at my wits end. I have been in a probate dispute with my co-executor/beneficiary (sister) for two years. I cared for our late mother for 18 months, before her death, in my own home. My sister has made unfounded allegation but has not taken legal proceedings (just constant threats) and is refusing to release any of the Estate proceeds. I have provided all of the required disclosures but she refused to accept them and nothing is happening. I have offered mediation four times which has been rejected. The Estate solicitor is not doing anything to resolve the matter. I feel like I am being held to ransom and I have not done anything wrong. I was told four months ago she was seeking Counsel's advice but I have not heard anything further. It is now impacting on my already poor health what can I do?

[Peridot]

Hi Jane D,

How distressing for you.

Just to clarify are you an executor or a beneficiary (or both). What is your sister? How are the solicitors involved are they executors or were they instructed by the executor(s)?

Without going into huge detail can you expand a little on what your sister is alleging? Have you been in touch with the solicitors dealing with the estate?

Sorry lots of questions and probably there will be a few more once we receive your response to these. Hopefully we'll be able to point you in the right direction then.

[Jane D]

I am joint executor and beneficiary with my sister (there is only the two of us). My sister accused me of spending my mother's money for my own benefit over the 16 month period my mother lived with me (she has subsequently suggested I have been stealing from her for years) She waited to make her accusation after my mother (whom had suffered a stroke 6 months after moving in with me but whom I continued to care for 24/7) after my mother was moved into a hospice and could no longer communicate. I contacted the OPG as soon as she made the allegation and they began an investigation which I cooperated with but unfortunately my mother passed away before they could complete said investigation. My sister repeated her allegation at the reading of the will and I reiterated to the Estate solicitor that I had not done anything wrong. My sister has refused to release the proceeds of the Estate even though two years and four months have passed and she has still not taken any legal proceedings. The Estate solicitor was asked to act as a third party because of my sister's unreasonable behaviour. I provided all the answers to the questions her solicitor demanded of me (they did not contact me until a year after my mother's death). She consistently repeats her allegations without supporting it with evidence. I have consistently said I am prepared to go to court if she wishes to issue proceedings because for me it is about my reputation. I feel in limbo and it is now beginning to impact on my health. My solicitor is trying to prevent going to court purely because the Estate value is small £190,000. I feel like I'm being held to randsom without due reason. The Estate solicitor asked me to get a letter from my solicitor to aid him in making an interim payment. I did. Nothing happened. The accusation was originally for £15000 then it went up to £30000 and now she is demanding I pay £42,250 (which includes rent she believes is owed by my daughter who moved into my mother's property at my mother's request and without rent being asked for so there was never an agreement either verbally or written for such) and her legal fees. She recently threatened to issue proceedings under a part 8 order instead of a part 7 knowing full well there is most definitely a substantial dispute about her allegations. I have offered mediation on four separate occasions which has been rejected each time. My last letter sent in June (sent with a breakdown of how the money was spent after my mother's stroke) stated that I was not taking liability for my mother's finances before her stroke because she had full capacity until then (a power of attorney was registered from six months before my mother's stroke but that was an admin date only and I have plenty of proof my mother had control over every aspect of her life the only thing she needed assistence with at that time was due to mobility). My sister is alleging that I have effectively had my inheritance early based on her opinion. The Estate solicitor has been kept informed of the situation but seems reluctant to take any action. Since my last letter to her solicitor stating that I would object to a part 8 Order I have simple had an email via my solicitor stating that she is seeking counsel's advice and that they will be contacting me at he beginning of September with her decision. So far nothing. I just want it all to end even if that means going to court as I have not been able to grieve for my mother and these allegations have been hanging over me since 2016.

[Peridot]

Hi JaneD,

Apologies for the delay in responding. How distressing for you it is so difficult when you are not even able to come to terms with your mother's passing.

If there is nothing to support any suspicions your sister may have I suspect that the barrister's opinion has basically said there is little point in pursuing this. However they may be playing a tactical game to a certain degree if there is little chance of her being successful in any claim. The cost of bringing the matter to Court and potentially losing could be significant. The stalling may be to encourage some sort of offer to settle from your side just to make the matter go away. As you are no doubt aware there are always risks for both sides in pursuing the matter through the Courts and if costs were ordered to be paid from the estate there could be very little left over, to even be distributed.

As far as your executorship is concerned did you renounce your position so have had nothing to do with the administration of the estate?

The rent for your daughter in your mother's home is this before she died and for which you believe your daughter had permission to stay there rent free from your mother, or is it for a period after she died?

What is your solicitor suggesting you do?

[Jane D]

I have not renounced my role as executor and apart from the division of the proceeds of my late mother's property I have overseen her funeral, the division of her chatels, the sale of the property and all necessary paperwork with regards to probate.

I have provided my sister's solicitor with all the evidence I had as to how my mother's money was spent after her stroke (I was originally going to state how I know she spent her money before her stroke but because my sister is trying to claim I have been stealing from her for years I have stated that I am only taking liability for the spending after her stroke as prior to that she had capacity).

My solicitor says much the same, that the burden of proof of my mother's capacity and my 'supposed' spending of my mother's money before her stroke lies with my sister.

He has stated to her solicitor that as the Estate is modest any legal proceedings will deplete what there is and the only 'winners' so to speak will be the solicitors.

He has stated that he believes Counsel will have told her to end the dispute as there is no evidence. The Estate solicitor has done nothing. The only reason I hired a solicitor was because he asked for a letter to be sent telling him to distribute an interim payment so he could act on that regardless of my sister's demands.

The letter was sent. Nothing happened. I have offered mediation four times. This has been refused. The Estate solicitor said that if we had not come to an agreement by the end of June 2018! He would apply for an order 64. That has not happened.

When my sister threatened to start proceedings under a part 8 order I stated that I would object to that as it should be a part 7 Order as there is most definitely a substantial dispute about her claims.

In August we were informed she was seeking counsel's advice and would hear from them at he beginning of September. I sent an email to my solicitor last Friday saying it was now the beginning of October and they had still made no decision. He has again written to them for a response.

What I cannot understand is why when no proceedings have taken place in 2 years and 4 months the Estate solicitor has still not either made an interim payment or applied for the order 64. I cannot understand why there doesn't seem to be anything I can do but be held to randsom. I have not done anything wrong. I don't care about the money despite the fact I am living on a meagre pension and have had to enter into a monthly payment agreement with my solicitor to pay his bill.

Something I would have been able to pay already had an interim payment been made. I don't understand why my sister is being allowed to do this based on her opinions.

I wrote to the Estate solicitor to complain about his lack of action and was more or less told that he could not do anything until we agreed even though he was asked to act as the third party because he knew my sister would not agree to anything. The will wasn't contested, she signed the probate and agreed the sale of the property but because she is refusing to release the proceeds, I am in limbo.

I have said I am prepared to go to court and defend myself because for me it is about my reputation but I don't see why I should be the one to instigate proceedings when it is she who has made the allegations.

Can I go to the Ombudsman with a complaint about the Estate solicitor? Surely 2 years and 4 months is a ridiculous and unacceptable amount of time for a dispute to not have been resolved. I just want it over with as it is constantly hanging over me. It's the last thing I think of at night and the first thing I think of in the morning. I have had to have counselling for depression over it.

What can I do if she still refuses to release the proceeds even now? What pressure if any can I put on the Estate solicitor to go ahead with an interim payment (I had agreed to leave the disputed amount aside)? What options do I have? Sorry if I have repeated myself but I feel lost.

[Jane D]

My daughter was asked by my mother in the January (2015) if she would move into her bungalow as it had lain empty since she moved in with me in December 2014.

My mother didn't want to return to her bungalow but was worried about it being vulnerable and as myself and my husband were going over regularly to check in it my mum felt it would be better if someone moved in instead.

Initially, it was going to be my son who also lived with me, but when my daughter stated she was not renewing her rental agreement on the three bedroom house she'd been in because the rent had been increased my mum asked if she would move in instead. I had nothing to do with this agreement.

My mother stated she did not want rent from my daughter but expected her to foot her own utility bills. My mum wanted to continue paying for the building insurance and council tax. We explained she couldn't continue paying the council tax as she wasn't living there so my daughter would have to pay for that.

My sister was informed that my daughter was moving in to the bungalow for security reasons and had no objections. The only time my sister raised the issue of my daughter paying rent was after she made her allegation on 11th May 2016 ( when my mum was in a hospice) and demanded my daughter repay rent she believed was owed from when my daughter moved in (March 2015).

I have stated that there was never a rental agreement. The verbal living will agreement was between my mother and my daughter.

After my mother's stroke my sister did not request my daughter begin paying rent. In 2016 she demanded my daughter make contributions of £300 a month (my daughter felt coerced but started to pay this amount into my mother's bank. She stopped making the payments (3 in total) when my mother moved into the hospice.

My sister is demanding my daughter repay a £600 monthly rate retrospectively (5,850). My mother's property was a one bedroom bungalow occupied by my daughter, her partner and two small children.

My sister is trying to sue me for it. I have told her that if she wishes to pursue her claim she must do so with my daughter as a separate issue from the allegations she has made against me. She hasn't done so but is still pursuing this amount from me.

My solicitor says that the arrangement my mother had with my daughter was between them and my sister would have to prove there was a rental agreement. I hope this helps.

[Peridot]

Hi JaneD,

Families can be the worst for their lack of support of each other at the most needed times. As far as the rent for the bungalow is concerned as your solicitor pointed out this is between your daughter and your sister so shouldn't even be raised in the context of the estate administration. Has your daughter remained at the property after your mother passed away? Would it be appropriate, if she remained there, to offer a settlement to your sister of what half any 'rent' potentially would have been from your share of the estate. I'm not suggesting you are in any way accepting this was the arrangement and nor should you but to try and finalise matters so that you can finalise the estate. I wonder whether an offer of something may calm things down a little to try and enable the distributions to take place or do you think this will just fuel things even more?

The issue you have with regard to interim payments and your estate solicitor's refusal to deal with the matter is that they are instructed by the executors. They can't take any action independently of the executors. This of course causes issues when the executors can't agree. Unfortunately the solicitor is doing the right thing although I would have thought they would make some recommendations to try and allow the estate to be finalised. As you say it can't just linger indefinitely before something is sorted particularly when it seems your sister is so entrenched and apparently unwilling to even try and deal with this.

I suspect that your solicitor is correct regarding the barrister's opinion and she is now deciding whether to get another opinion or not. So you now each have a solicitor and there is a solicitor trying to deal with the estate in addition. The costs must be huge all of which will ultimately come from either the estate (the estate solicitors) or ultimately your individual legacy I imagine.

I anticipate that the estate solicitor was waiting for the outcome of the barrister's opinion or at least some indication of what your sister's next move would be but of course this has not been forthcoming. They will also be mindful of the costs to the estate in making any application. Of course an application to the Court could request an order that all executors be removed and replaced (or the Court deals) but you should also be aware that any other executor, particularly if a professional is appointed, will incur further charges in dealing with the estate accounts and administration. Your solicitor is right there are no winners here except those professionals paid to deal with the issue. All of which impacts on the final sum available to the residuary beneficiaries.

I assume that this has been spelt out to your sister by not only your solicitor but also her own and the estate solicitors. I would suggest that you contact your solicitor and ask them to explain all the options that could happen now and an overview of how they would be dealt with. If your sister refuses to act and is content to just leave the money sitting in the estate solicitor's client account, you need to know what action can be taken to force the distribution and the likely cost of each option.

Maybe you need to force your sisters hand by making the application. I appreciate that she has refused mediation however this is encouraged throughout any proceedings, so I would recommend you leave the door open in this respect. Maybe once the penny has dropped with regard to the cost and the likely reduction in any legacy she is likely to receive she may be more receptive to settling matters? It may also be necessary for you to undertake a cost benefit analysis yourself. An 'offer' to settle made without admitting anything but with a view to preserving as much of the estate as possible, rather than paying it to lawyers and barristers going through the Court process could enable the estate to be finalised and you both to move on.

It is such a hard situation for you and doesn't allow any of you to grieve the loss of your mother or move on while it rumbles on.

[Jane D]

Thank you so much for your advice. My daughter moved out of the property after my mother's death but before the sale of her property (we oversaw all that too and carried out repairs to mum's property to enhance the sale). It isn't about money for me. I have said from the beginning that I have not done anything wrong and for me it is the allegations she has made that has distressed me. I believe my sister to be deflecting her guilt at not having done anything towards our mother's care for the previous ten years prior to her death or support of me (she indicated as such to me two weeks before her allegations). It is the fact that she has accused me of stealing from my mum (not just money but some of her belongings) that is causing me great distress. She has tried to tarnish what was a loving, caring and honest relationship between my mother and I. I have been quite submissive up to now because all I can hear is my mother saying 'I don't want any arguing when I'm gone' which is why I have offered mediation and have indicated I am still willing to do mediation. My sister is mentally ill (a fact not a smear) and I have also tried to be mindful of that but it is as I say now beginning to impact on my health. I don't care if it goes to court and all the money goes I just want it to stop and ideal for my sister to acknowledge that I did not abuse my relationship with my mother. I have considered offering an amount without prejudice, that I was willing to give to my niece (her only child) for education purposes as she's at university but my solicitor advised against this because of my sister's aggressive and unreasonable behaviour towards me. He felt that, as my sister is trying to claim money from before the POA was issued that any kind of monetary offer on my part would be misconstrued as an admission of guilt by my sister. I believe this to be the case too because when I was initially accused she took my response to be a sign of guilt (I was submissive because I was shocked). She demanded a forensic accountant be hired to go through all my bank accounts and added on her legal fees all without any legal proceedings. She is unreasonable and irrational and because of this I have to be careful how I deal with her, which is why it has taken so long. I have provided her with proof of purchases for my mum and supporting evidence from the care agency and doctor. She still refuses to accept I have not spent the money on myself. I have sent the Estate solicitor a copy of the recent correspondence we sent over a week ago to her solicitor asking for a response to the findings by the Counsil advice. I have stated to the Estate solicitor that if my sister is not intending to issue legal proceedings then I expect the Estate to be wound up and the proceeds divided as per my late mother's will. Two years and four months is long enough. I will have to 'wait and see' what her response will be but I am prepared to ask the Estate solicitor to apply for a Beddoes Order if my sister continues to procrastinate. Thank you for your support I really do appreciate it.

[Peridot]

Hi JaneD,

It sounds like you are both struggling to come to terms with losing your mother but unfortunately maybe due to her mental health your sister is being particularly unreasonable. As I mentioned before I suspect the reason you have heard nothing is because the barrister she got the opinion from has said there is not a claim to answer and she is sore about that too no doubt. She may have even stopped corresponding with her solicitor.

She is not entitled to add any legal fees to the estate unless they are the estate solicitors fees. Her own fees chasing things that may or may not evidence anything are her problem I'm afraid to say. The same goes for your daughter's 'rent' If she moved out following your mother's death then the estate can't claim rent from her. If there was evidence of a rent agreement then there may be a claim the estate could make for the period she was living there and not paying any rent although it would have to be shown there was an agreement in place to have any chance of success.

I suspect it may come to a claim being made for the estate to be wound up or maybe removing her as executor altogether to allow this to happen. I appreciate this is not about the money and we all want to defend ourselves if someone makes allegations however the cost and stress may really not be worth it. If there is any chance for you and your sister to make amends in the future I suspect a drawn out claim would not help this happen. The Court's could also feel the claim is unwarranted when there are other ways to get the estate wound up and for everyone to go their separate ways so to speak.

Just bear in mind the Courts often take the view that it isn't always the right thing, to hold onto the principle whatever the cost.

The stress of Court proceedings does nothing for anyone's mental health.

Time marches on and things do get forgotten by those not directly involved, although I appreciate it doesn't feel like that at the moment. You will get there and then you can concentrate on moving forward to try and deal with everything that has happened.

I would discuss this with your estate solicitor regarding the options to get things finalised and pop back if you want any more pointers.

[Jane D]

Hello, I did as you suggested and wrote to the Estate Solicitor on 5th November asking his advice on what my options were. He did not respond.
I have now had a letter from my sister's solicitor stating they do not accept what I have put in the expenditure spreadsheet (the amount of breakfast products purchased) and have accused me of fabricating these expenses to cover where they believe the money went (on myself). They have stated I have broken my fisiduary duties. Again she has accused me of spending my mother's money on myself.
She has lied about a so called agreement that was made about my mother moving in with me and states that my mother was not in charge of her own finances from December 2014. This is untrue. My mother had full capacity before her stroke in July 2015 and she made the decision to stay with me after her Xmas stay. It was not pre-planned or agreed by myself and my sister. I can prove this.
My sister has refused mediation again unless I agree to the hiring of a forensic accountant. I did agree to this previously until she changed the perimeter of my agreement from an accountant looking at my bank statements to agreeing to his findings ( how an accountant can decide what the money was or wasn't spent on or to the validity of the expenditure is unacceptable). This is now also being used as a threat (if I do not agree) to having me removed as executor.
I have e-mailed my solicitor instructing him to start proceedings on my behalf. I am tired of everything in this dispute being at my sister's behest. From the beginning she has treated me like a criminal. I'm being told to prove my innocence when it hasn't even gone to court. The Estate solicitor is not being helpful and I feel I have no option now but to get this to court myself so a rational and unbiased judge can make a decision. I have stated from the beginning that I was prepared to defend myself in court. I have not done anything wrong but no matter what I say or evidence I provide she refuses to accept this. What can else can I do? I need this to be over not only because of the damaging effect it is having on my own health but my son is due to have life changing major surgery in the new year and I am his primary carer and need to focus on his recovery. Sorry to go on but I can't believe this is still happening.

[2222]

Sorry, did I read that correctly? They are arguing about the Corn Flakes? How much is in the spreadsheet for breakfast products, and what figure do they think it should be?

[Peridot]

Hi JaneD,
im sorry things appear to have deteriorated even further. From what you have said it appears that you have tried. It is a shame an agreement can’t be reached and that they are refusing to mediate.
I am just wondering why if she believes she has such a rock solid case and has allegedly obtained a barristers opinion, why she has not made an application to the Court and is continuing to make these demands.
im not sure what she believes she can achieve having a forensic accountant look at your mothers accounts will achieve but if she wants to pay for this and as you say there is nothing untoward there, would it be a possible way of putting this to bed so to speak or do you suspect even if the forensic accountant reported nothing she’d still be looking to the next thing?
Maybe an application yourself is the only way to force the issue towards a final decision. It is a shame as I suspect the cost and time this could take will not mean the issues are finalised any time soon.
you do need help and advice on this from a litigation specialist in contested probate. The probate solicitor (the one dealing with the estate) May not be the most appropriate if they are not used to dealing with litigation issues. I’d maybe see if you can get a couple of appointments with different solicitors for a fixed fee or free half hour appointment to discuss the options.
prepare a timeline of events including the time before you started helping your mother with her finances so that you can focus on the issues and leave the emotion at the door. You don’t want to waste anytime in a short appointment so a synopsis is sensible.
i hope you can explore some other options with the solicitor.

[Jane D]

Exactly 222 she is claiming what I've stated for breakfast s is not possible for my mother to have consumed but what she hasn't considered (because she wasn't involved with my mother's care despite being invited to do so),is that after my mother's stroke I would often make up to 3 or 4 different meals each time because she wouldn't eat the first or second meal and I wanted to insure she had nourishment (which the doctors complimented me on, that I was doing a good job). She claims £96 spent on the food budget was for a family of four not a single person. She has lied that we had an agreement for my mother to move in with me in December 2014 because of concerns over her wellbeing and that she wasn't in control of her finances even then. All untrue. My mother made the decision to stay with me after she came for Christmas. She was due to go home on the 27th but asked if she could stay. I had to phone the care agency (who called twice a day to help her out of bed in the morning and into bed at night) to tell them she wasn't coming home and I'd keep them informed of when and if she would be returning. So much for a pre-planned agreement. My sister is trying to make me accountable for my mother's finances before her stroke, which again is untrue. It doesn't matter what I say or do she is determined to be unreasonable and irrational hence the fact she has refused mediation four times and now says she will only agree to mediation if I agree to a forensic accountant whom she wants to look at my bank statements etc. I agreed to this some time back but she changed the agreement to state I would pay back any money the forensic accountant couldn't trace or decided was not a valid expenditure. I withdrew my agreement because of this, stating that those decisions were for the courts to make not the forensic accountant. I have decided now to issue proceedings myself as after two and a half years enough is enough. I'm quite prepared to prove my innocence in court. I need this over with. My son has to have major life changing surgery in the New Year and I will be his primary carer so I want to be focusing on his needs and not this unnecessary nonsense with my sister. I don't care what the outcome is now I just want it over.

Many thanks Peridot I do appreciate your advice.

[Jane D]

Hello again,
Well my sister's solicitors informed my solicitor by phone in April that she had agreed to mediation. My solicitor sent them a list of mediators to choose from. Then two weeks later they contact my solicitor again to say they are putting together a proposal. The proposal came on 30th May and it basically reiterates her unfounded allegations but states that instead of me paying back the money she believes I owe to the estate she will accept
half the amount plus her costs plus 10% and if I don't accept the offer (which they deem reasonable) she will seek a judgement for the full costs blah blah blah. I do not owe money to the estate. I have not used my mother's money for my own benefit and I will not be bullied into paying back money I do not owe. She will not do mediation unless I agree to her conditions, which are basically court action without going to court (forensic accountant and an investigation?). I am not afraid to defend myself in court because I can support my side with testimonies and I'm happy for the courts to look at my bank statements. I'm trying to avoid court because of the unnecessary costs it will encur for no reason but she will not mediate and I believe that this dispute could be resolved through mediation. What does it mean she will seek a judgement for the full amounts she deems owing if I refuse her offer? Does that mean she will take it to court therefore have to prove her case against me (which she won't be able to do because I've not done anything wrong). I've resigned myself to the fact there will be no money left from the estate (money she has refused to release even though I agreed to leave aside the disputes sum (she has since claimed I owe money from years before my mum's passing so that amount has increased 4 fold). It is the third solicitor to handle or as they said 'inherit' my sister's file. My solicitor has asked them for a breakdown of the amount they have stated for the settlement (he wants to see where they get the figure from). The estate solicitor has not responded to any of my emails despite him being asked to act as third party and he said last year that if we hadn't reached an agreement by the end of June 2018 he would apply for an order 64. This has gone on for three years now and I cannot see an end in sight. Is there a time limit on an estate being wound up? I don't know what to do now but I don't see why I should pay back money I now I do not owe. I would appreciate any advice.

[Amethyst]

What are their proposals with regards the forensic accountant/investigation ? specifically any proposal on the costs of such ?