Claim against mother's estate

[roger1moore]

Thanks Peridot, sorry only just saw your response - it's the solicitor writing and sending letters for sure.

They said they found my offer an insult - even though it was based on what he told me last week - so yes, it's been rejected.

I will try preparing for both routes, so thanks for that.

[Peridot]

Hi again,

I think a strongly worded letter from your solicitor setting out the facts as you understand them may be useful, if not done already. It does seem rather an aggressive stance to take unless his solicitor doesn't know the whole story.

Of course 20 years is a long time to be with someone in a relationship to then lose them and apparently have nothing, but that doesn't appear to be the situation here so I'm not sure why they are being so aggressive.

As I mentioned above maybe work out with your solicitor best offer you would consider making (and that is reasonable) then gird yourself for a potential battle. It seems to me you've been doing the right things so far. Unfortunately it may be a case of just bracing yourself and see what happens next.

[roger1moore]

Thanks Peridot, I'm feeling a bit crushed under the weight of this today, so have come up with some specific questions:

1) I know you've said before, it's up to him to prove an interest in the property at mediation, is that right? There's still no movement on his bank statements, and I'm pretty sure he doesn't have any other proof, he just lived there. What do you think?

2) Looking at the correspondence I've seen from his solicitors, the arguments he seems to be going with are that he and my mother were "as good as married" (surely as good as is actual marriage) and that he can't get over the initial devastation of "being forced from his home" (which he wasn't), despite having offers to stay since. I know mediation isn't the same as litigation. Are these weak? Do they matter?

3) On paper, his earnings, savings and pensions are greater than mine - if we're splitting the estate, will that factor?

4) I've been told at best he might get 50% of the estate - I'm assuming that's if he has a strong case with lots of evidence, not if he has none. Also I remember what Peridot said, there is a huge gap between best and worst case.

5) If he gets a life interest, can he sell the property and reinvest the capital? I don't trust him on matters like this. Can I stipulate?

6) He seems to think he's been awarded a blank cheque in terms of fees, as I agreed to pay 'costs to date' in December - my solicitor says fees are allocated as part of the settlement. Should I be concerned?

Trying to arrange a mediation date currently - my solicitor is also consulting a barrister, as he has done previously. I know some solicitors don't, or say they don't need to. I suppose it's good to. What do you think on this?

[Peridot]

Hi Roger1Moore,

Right I'll try and answer in order.

For him to prove he is entitled to a share of the property he would have to evidence hat he has put in above and beyond what would be reasonable. They have been together a long time so what has been suggested allowing him to remain there until whatever event is decided would seem a perfectly reasonable offer if he cannot show he has a legitimate claim for a share. This is the evidence that would be needed in any court claim.

Mediation is not as 'legal' in its approach. It is in effect an open forum where parties can suggest solution based on the facts they have or suspect. It can be a useful tool to actually find out what each party wants and try and find common ground that can be agreed between them. Hopefully with a view to settling the whole issue. Parties are encouraged to be open and honest with information such as the fact he has another property so is not going to be left destitute. Once or if an agreement is reached the solicitors can then draw up a binding agreement for the parties to sign. Is your solicitor coming with you to the mediation? It isn't necessary but if he has his solicitor there it may be that you feel you need the support? It would be an idea to get straight in your head what could happen if the matter went all the way through the Court process and the worst case scenario that could happen with him being awarded a share for example. Have the limits you would be prepared to go to in order to settle matters now. There will be a tipping point after which it would be more sensible to risk the Court route. You need this clear in your mind.

As good as married is not married! Co-habitees do not have the same rights as married couples, they have to prove in Court what the intentions of the parties were or that an agreement had been reached between them which again needs to be proved or found to be a fact by the Court. It is not cut and dried as his solicitor intimates. This is tactics. Stick to your guns, yes I have no doubt that losing his long term partner has been upsetting for him but you have not kicked him out of his home and have infact suggested he stay there until such time as he chooses not to, dies himself or other reason eg he met someone else, before he has to leave the property.

Your earnings and his earnings are not relevant. If you were kicking him out and he had nothing then his ability to find a home, pay for repairs or find rent may factor into the equation but your earnings and financial status are irrelevant. Mediators are often lawyers or have been so they are well aware of the legal arguments that could be used. A good mediator will make suggestions and try and get each party to think about what they are asking for and the reasonableness of it. They have an idea of what the Court would decide as much as we do and ultimately want you to reach agreement but it has to be your agreement not one that is imposed on you.

Who told you 50%? It is possible as a worst case scenario I would suggest but as you say he would have to evidence this. They were together for 20 years and if your mother wanted him to have a share she could at any time have made arrangements for this. She didn't so it is for him to prove that such an agreement existed.

I'm not sure why he should be entitled to a life interest but if he did you want a legally binding document drawn up that stipulates when the life interest would end. It can include things like what would happen in the event he could no longer manage the property and needed to downsize - what happens to any excess capital from the sale at that point, who would be responsible for insuring the property and repairs, bills etc. what happens if he met someone and wanted to move them into the property. Everything can be covered. If you were minded to divide the property 50/50 then again you can have a trust deed drawn up stipulating how, when a sale takes place what happens to the proceeds and how you agree he lives in what is effectively 'your' share of the property.

Was your offer to pay his costs in writing? Bearing in mind his shenanigans to date I wouldn't be minded to offer to pay his costs, they could be significant. If the matter went to Court the Court would decide. If he will not agree anything at mediation without you agreeing to pay his costs for the mediation, it may be foolhardy to refuse so that is up to you. Once you have had mediation and if you can't reach an agreement it may then be a time to make a final offer to him but you can use the costs point as a sweetener and something to negotiate with but I would make it very clear in any offer that if not agreed you would be seeking costs from him in any Court proceedings. Your solicitor will guide you on this once you know what happens at the mediation.

What is your solicitor getting the barrister's opinion on? If it is best and worst case scenarios this will probably be helpful for you so you can understand the risks and make sensible offers if appropriate. Don't forget it isn't only you that is taking the risk here. There are no guarantees a Court would find in his favour or if they did he would achieve as much as he believes he is entitled to. There are risks on both sides. Maybe find out what the barrister's opinion is concerning but not a bad idea to have a written opinion just to be clear on the options and scenarios that could happen at Court. It will help you gauge your best and worst offers to make or be prepared to give at mediation.

Think I've covered your questions and hopefully not scared you further. Deep breaths stay calm and try not to be drawn into a slanging match with him. Here if you need us.

[roger1moore]

Thanks Peridot, it's all really helpful. I have some developments on this.

My solicitor is now arguing with his side that there is no point going to court or even mediation - as in effect, there is nothing to mediate.

We've countered now with a life interest, so upped the offer we had before, and that's the best he can possibly be awarded, as far as I can tell. He is not entitled to my mother's pension that I was awarded (which he also applied for at the time and failed to get) as it's not part of the estate - my solicitor says no judge or mediator is going to give him that, and we've told his solicitors that also.

That leaves the house/estate - he's not bothered to make a claim on it, in terms of ownership, nor has he mentioned it, as I don't think he has any proof he's ever paid into it. He's still refusing to show his bank statements on the grounds he is too upset apparently.

That leaves the issue of his fees, which his offer of the life interest is tied into - my solicitor countered with a Part 39 offer, so we've said that I will pay his fees from the estate. So the choice he faces is either we sell the house now to release the money and move him to a new property the estate can afford, or he stumps up the cash himself so he can stay there, and on his death when the house is sold his own estate is reimbursed.

So am waiting on him to agree. He's not going to like either outcome. Was meant to respond in 7 days and hasn't. Also it was a few months back when I stopped this going to court to settle and the deadline is fast approaching.

Does he have anywhere else to go on this? I can't see that he does.

[Peridot]

Hi Roger1Moore,
Thanks for the update. Without proof of funds above and beyond payment of mortgage and bills he would have no chance so probably a good thing he can't demonstrate it or is refusing to.
Glad your solicitor has put in a Part 36 (I assume rather than 39) offer. It has cost consequences for the loser if the matter when to Court which from the sounds of it is unlikely.
It seems he is caught now so hopefully a decision will be made soon. Probably after a chaser letter or two if his previous behaviour is anything to go by!

[roger1moore]

Thanks Peridot, good to know I'm on the right lines, pretty much.

I've actually had a response - from all the bravado about how it was his house, not mine, and how he was going to take my money away, this is the stage I'm now at.

It says that in principle he accepts the Part 36 offer, subject to the following changes:

i) I extend the offer of his life interest from 80 years to 125 years (surely this is being awkward, or maybe he doesn't understand what it is).
ii) I change inspections on the property from every six months to every two years (I drove past the property today and it is already in a dilapidated state - the driveway is overgrown, the garage looks like it is falling down. I'm going to suggest two six-monthly visits, and if he can keep it to a decent standard then more infrequently is fine).
iii) All of his "damages" or costs need to be paid from my own bank account, and this in non-negotiable apparently. I'm being asked to do this without even knowing what his costs are. I agreed to pay to-date back in December, but he carried on trying to get more out of me.

I noticed there are a couple of other things changed in the T&C's - like I have to get his agreement if I want to sell the property, but on his insistence I have to sell and rehouse him.

I'm not quite sure how to play it. If this went back to court, surely they would see he is just being unreasonable (125 years!). But would there be a risk to myself, although in his mind I'm paying for this already anyway?

He's clearly given up on a claim to any money or trying to prove he has ever paid anything into the property.

My solicitor seems to think just try to wind it down - selling the property is complicated, with stamp duty and so on, so might be best to see what his fees are and make a decision accordingly. But I've a feeling he has racked up a lot, and in principle the fact that I'm paying all this when I said he'd need to sign an agreement to live there in the first place just seems wrong.

[Amethyst]

Life interest is until he dies ? or is he immortal ? or just has really really good health so expects to live for another 125 years? think 80 years more than covers it .... I'm sure Peridot will pop in tomorrow to give you some sensible thoughts but seems you've been more than reasonable so far and it's unlikely the court would order him more than you offered.

[Peridot]

Hi Roger1Moore,
He is looking at is as a trust document the rules changed and what was 80 years is now 125 years for the period of time that the trust can last but would then need to be wound up. However isn't this a life interest trust? So usually in a Will you would see something along the lines of:-

Life Interest in Home

a. In this clause:

i. “my trustees” means my executors or the trustees for the time being of this clause; and

ii. “the trust fund” means all my interest in the property, and the assets representing it from time to time.

b. My trustees have all the powers given to executors by my will.

c. I give the trust fund to my trustees on trust to pay the income to the life tenant during his lifetime or until he remarries. d. While the trust fund contains a dwelling occupied by the life tenant as a home, the life tenant must comply with the following conditions:

i. the life tenant must pay all outgoings;

ii. the life tenant must keep the dwelling in good repair;

iii. the life tenant must keep the dwelling insured to its full reinstatement value, with an insurance company approved by my trustees, at the life tenant’s expense.

e. The decision of my trustees as to whether an event has occurred, or a condition has been fulfilled, is binding.

f. My trustees are not obliged to ensure that the resident’s obligations set out in this clause have been complied with.

g. At the life tenant’s request, my trustees may sell the property and buy another to be held on the same terms as the property.

Of course they can vary to include or exclude various options but this is a straightforward example. However this is the sort of trust you would find in a Will. Will there be any inheritance tax issues on this bearing in mind the variation is taking place more than two years after your mother died? You do need to check the tax position on this arrangement too.

From what you say about the property I would be inclined not to budge on the 6mths checks but as you say if all is well reduce after a couple of years? I would also want to see his invoices for legal fees not just have him dictate what he has spent. So on production of valid invoice for legal fees you confirm you'll pay them. There doesn't need to be any specification as to where the funds come from that is your business.

You'll notice the example life interest trust above does give the option to sell and buy another property to be held on the same terms so that may not be such an issue for you?

Just checking how your solicitor is dealing with this. Are they proposing a Deed of Variation or as it is after 2 years since your mother died and the property is in your sole name is this a trust being set up that will have entry and exit charges to pay?

What has your solicitor suggested? You shouldn't be stumping up everything in my view. There is a chance the Court would award him something but I think you need to retain some protection for letting him remain at the property. I would always recommend the trustee sorts out the insurance so at least you know that is covered but if the property is not being maintained then I would want a way to get him out. Sorry I may sound harsh but he doesn't sound the most reasonable of humans.

[roger1moore]

Thanks Peridot. There was no will, so this is something the solicitors are setting up between them. I'll ask about entry and exit fee. Yes, it is nearly two years since my mother's death, and no he is not reasonable at all.

I will ask about the inheritance tax arrangement too.

Something I've just read from his solicitor is that I should have opted to make a Calderbank offer, they cannot understand why I didn't, and by not doing so I've made myself personally liable. My solicitor says Calderbank and Part 36 are much the same in terms of cost consequences, but the benefit of a Part 36 is no ambiguity or court discretion, and as he did not respond to the "without prejudice save as to costs" Calderbank offer of a life interest, but did once it was made in a Part 36 offer, then that's proof he needed to be put at risk before he would settle.

My solicitor hasn't suggested anything on costs - but does say I shouldn't agree until I know what they are.

Buying and selling is covered in the agreement - the whole thing as an arrangement going forward, once the solicitors are out of the way, no matter how this ends up, just fills me with dread. The house is already rundown, I can see him not agreeing to repairs and just being unreasonable.

He is down to pay for buildings insurance himself - I've paid the last two years, so should I claim that back?

[Peridot]

Hi again,
Even with an intestacy you can deal by way of Deed of Variation I think you need to be certain of the dates as over 2 years from date of death you wouldn't get the benefit of s142 Inheritance Tax Act 1984 which basically means that any

IHT on your mother's estate is calculated as if the variation had been effected by her and where the variation is not itself taxable as a transfer of value.

Calderbank offers and Part 36 offers are very similar this article may help you:-

https://www.shoosmiths.co.uk/client-...orms-6075.aspx

I'm not sure what they are getting at as far as making yourself personally liable, maybe the way the offer was made from you as an individual rather than the administrator. It would seem to be semantics as you are the sole beneficiary in any event so any claim comes back to you whether administrator or sole beneficiary.

As far as the future is concerned, provided you have the agreement set up correctly then you have come back and can sue or get him removed from the property in the event he doesn't keep to his side of the bargain. It probably would entail a Court application to do so but provided the life interest is clear then the Court would honour it.

Do you know what the solicitor acting for your mother's partner specialises in? Curiosity more than anything just wondered whether this is his usual area?

[roger1moore]

It's on his list of specialist areas. I know there are solicitors who specialise in just that, and I do sometimes wonder if I should have looked around. When I first hired him, it was only to sort probate - wasn't expecting it to escalate like this. He gets advice from a barrister, which is another cost for me. But the solicitors I'm working against seem brash without looking over the details - asked for the pension money off me when the details were already there that this was not part of the estate.

[roger1moore]

Are there any examples of the agreement I might be working towards online? Want to make sure I'm protected, as he will invariably be difficult.

[Peridot]

Think your solicitor is fine, they've advised you ok so far it seems. I was wondering what his lawyer does.
As far as template documents are concerned it is not easy to get hold of these and will very much depend on whether this is a deed of variation or setting up a stand alone trust.

[roger1moore]

Hi there, just wanted to get some additional advice - basically, I'm a bit concerned that there's been no development or word from his solicitor on this for over three weeks. Should I be worried or get my solicitor to chase up?

So as I said before, my mother's partner has given up trying to get money off me or make a claim on the house, and has agreed to just carry on living there with a life interest. The court has been told that his claim has been narrowed to agreeing to a life interest, with an extension of six weeks requested to reach agreement on it and decide the terms and conditions.

That was three weeks ago.

The way we left it - my solicitor put forward a Part 36, and regarding the payment of his fees it says these can either come from the estate (which only consists of the house, so either we can sell the house, pay the fees and rehouse him somewhere the estate can afford, or he pays and on his death the house is sold and his own estate is reimbursed).

My solicitor thinks they are working themselves into a knot over these options - they kept chasing for payment for about two weeks, but each time my solicitor replied and said they hadn't given a figure, and they still haven't now for three weeks. My solicitor told me his fees - and pointed out he has done more work and been instructed for longer - but my mother's partner told me an amount he had spent a while back and it was triple this.

With the terms and conditions they also seem to be trying to keep the standards for the upkeep of the house really low. I noticed it has already deteriorated, so I insisted on getting an independent surveyor in, anything that needs to be repaired on the grounds of safety should be done, and that's the standard we use going forward. I wanted to be able to retrieve paperwork and other items belonging to my mother too.

If they are trying to run down the clock, what then? My solicitor says if it did go back to court, nobody will force me to pay his fees out of my own savings. I don't really get what their strategy is - if there is one at all.