USA

[JDL121]

Me and two brothers are being sued by my sister... should her solicitor serve the papers to my brother whom resides(two live in UK) in the USA her legals are saying we should receive all papers to a UK address this dont sound correct or even legally binding ???

[Peridot]

Hi JDL121,

Can you explain who is where please and a little more about the sort of claim this is as there can be differences depending on the type of claim whether there is a contract or a usual known address etc. Is the claim being started in the US or the UK?
We can only let you know what the rules are in England & Wales for effective service of a claim. So if a claim is being started in the UK these are the rules for service where the Defendant is in the UK:-

1. Individual	Usual or last known residence.
2. Individual being sued in the name of a business	Usual or last known residence of the individual; or principal or last known place of business.
3. Individual being sued in the business name of a partnership	Usual or last known residence of the individual; or principal or last known place of business of the partnership.
4. Limited liability partnership	Principal office of the partnership; or any place of business of the partnership within the jurisdiction which has a real connection with the claim.
5. Corporation (other than a company) incorporated in England and Wales	Principal office of the corporation; or any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim.
6. Company registered in England and Wales	Principal office of the company; or any place of business of the company within the jurisdiction which has a real connection with the claim.
7. Any other company or corporation	Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction.

Sorry formatting gone awry!

Scotland and N/I have a reciprocal agreement so the Court's permission would not be required. There is also a reciprocal agreement with other EU countries currently but this of course will probably be changing shortly.

For service outside the UK different rules apply and it will probably be necessary to obtain the Court's permission to serve the claim form (and other Court documents). An application to the Court would be needed.

The purpose of the application is to provide the court with the opportunity to consider whether the English court has jurisdiction to determine the dispute. If the court considers that it does have jurisdiction, it can use its discretionary power to grant permission to serve the claim form out of the jurisdiction.

In determining whether it has jurisdiction, the court looks at the following requirements

1. •
   there must be a 'serious issue to be tried’
2. •
   there must be a 'good arguable case', and
3. •
   the court must be 'clearly or distinctly' the appropriate forum

If the court considers that it does not have jurisdiction to hear the dispute it will not grant permission to serve out. It may still be possible to issue proceedings against the defendant but such proceedings would need to be commenced in the courts which have jurisdiction so in this instance in the US.

As mentioned at the beginning of this post if the claim is being started in the US then it will be different rules again so you would need specialist advice on that.

[JDL121]

Thanks Peridot... Its relating to a contentious probate matter three brothers(executors) are being pursued by a sister (beneficiary) in matter of breach of trust a possible order for sale plus damages ?

[Peridot]

Ok but who is where? So sister is going to issue a claim. Is that in the UK? If the sister is in the US then she will need to get her own advice on how documents should be served etc.

Do the brothers have postal addresses in the UK? Are you one of the brothers/executor? If the property and estate is in the UK then it is unlikely the Court would refuse to serve out of jurisdiction and would make the necessary order to do so.

Your sister should be aware if the claim is not successful in the long run and the US contingent had to come to the UK for a hearing potentially their costs of attending including flights hotels etc could be ordered to be paid by her. Has mediation been attempted? The Courts expect all parties to try and negotiate settlement even once proceedings have been issued. In the circumstances although difficult logistically (although we have skype and facetime that could be utilised) mediation would be encouraged.

She also needs to bear in mind the cost of pursuing the matter through the Courts if she were unsuccessful, against the potential value of the claim, if successful. The costs may outweigh the benefits.

Hope this helps.

[JDL121]

Thanks again so just to finish off... we almost forced her legals into mediation they eventually agreed such ,then spent 5 weeks preparing council rather than arranging mediation... The mediation was set to fail as they increased the claim from 32k up to over 100k and wouldnt budge beyond the new 100k figure... My brother attended from USA ? The matter is based in UK

[Peridot]

Blimey, that's a bit of a hike as far as value of the claim is concerned. Have there been any offers between the executors and the sister beneficiary and have any offers from her side been itemised. How has the figure jumped so far. Had she genuinely underestimated the value of the claim initially? Not really mediation, negotiation or anything conciliatory if you have a figure and won't budge at all!!

Are all three named executors also trustees or did any of the executors have power reserved to them or renounce their position? I assume not but best to confirm.

Has Probate been obtained?

Has she issued the claim yet? What is she actually looking for, just an order for sale and backdated monies owing?

Without knowing what the trust clauses state it is difficult to know where to point you at this stage. Are the executors also the trustees of the property which there is some issue with? Has the administration of the estate finished, save for the trust property? Have you sought a solicitors advice yourselves as executor/trustees? Have the executor trustees had to disclose any documentation with regard to income from the property etc?

Rather a lot of questions as opposed to pointers I'm afraid. You probably gathered from the initial response this is not a straightforward issue and far more information is needed.

[JDL121]

Thanks again.. glad you agree with the stance on mediation.. the new figure thrown in comes from a very precarious claim that in the year since the sale fell through on our property (an sale all executors and trustees were all in favour of) but my sister was not.. prior to even accepting an offer on the inherited property she had put her own offer on a property (250k) She is now saying that to get a similar property in a similar area she would now need £320k hence the additional £70k (incidentally the property she lost out on sold in Jan 18 for 262k but according to zoopla is currently valuead at 251k also we have found many properties within her previous budget
All executors are indeed trustees
Probate was served back in late 2015
Not entirley sure what she is after although she is and has been very easily convinced that she has a good case to take to court..
Apart from a house which two brother lived in prior to and still live in now the estate is finished... no income is being raised currently from the property

[Peridot]

So she'd already made an offer on a property before actually receiving the inheritance? How does that work? Bearing in mind the property market over the last couple of years I wouldn't have thought the prices would have risen that much but then I suppose it does depend where you are in the country.
So she has her own home already and was planning on selling that and purchasing another with the proceeds and the inheritance?

The wording of the Will is really important here, depending on what sort of trust it is. A life interest trust would potentially create an income from letting the property, which may be where she's coming from but all sounds quite confusing.

I'd suggest creating a time line of the actual events trying to ditch the emotional side so you can be certain of the course of events.

I assume you have estate accounts completed as far as they can be?

Has she instructed her own solicitor (I assume so as she has a barrister's opinion)? It appears you haven't had any correspondence setting out what she's after or what sort of a claim she's intending (or has been advised) to make?

Sorry more questions.