Probate Problems

[befuddledone]

Hi, I am a new poster and I really could do with some help. Stuck right in the middle of a horrendous situation regarding probate.
My elderly father had his will drafted by a local solicitor (A). I am one of 3 executors. The other 2 want to use solicitor A for handling probate, now that my father has passed away.
I strongly opposed the appointment of A, as the will was very poorly drafted and lacking in vital details regarding a trust, which is causing major disagreements.

I also felt that A inadvertently allowed executor (B) to add some extra clauses to the will, as B attended the 2 meetings for the will drafting. My father sent typed instructions to A before the first meeting. A's attendance notes consist of a few handwritten scribbles on these typed instructions. 3 new clauses were added to the will. Neither the typed instructions, nor the scribbled notes mention any of these 3 changes. Paragraphs in the typed instructions that directly contradict these changes are not crossed out and have no notes beside them.

In conversation with one of the beneficiaries B later admitted she told A to add 2 of these clauses 'as he left the house after the meeting'. I believe that B had probably told A that my father had 'forgotten to mention' these clauses, A then added them after that first meeting, and presumably did not bring these changes to my father's attention when he returned with the printed document for the signing of the will.

I did not wish to continue with a solicitor who was so easily influenced by her, wrote a terrible will in the first place and presumably did not fully explain to my father the important changes caused by these new clauses. No doubt this is why B is adamant that only this solicitor be appointed.

The 2 other executors work as a team with B running the show, and the other one just agreeing anything she says.
For several months we disagreed about appointment of solicitor A. I repeatedly told them in writing that I refused to agree to A. I found another solicitor, who they refused to appoint. This other solicitor told them that there were serious problems with the will, caused by the poor drafting of the trust.

Since we have become executors, they have lied to me about various issues (I have proof of this), and generally fed me as little information as possible. All my father's papers and will were removed from the family home by them prior to his death, without his knowledge.

Over Christmas they lied to me again, and told me that they had gone ahead and appointed A to act. I told them to un-appoint him and to inform me when they had done so. I wrote to A and very clearly told him that this was against my wishes and not to proceed unless he had my express permission in writing. He replied that they had not instructed him and that he had told them clearly that he would not act without the agreement of all 3 executors.

A couple of weeks later I had a letter from a junior solicitor in the same firm (a firm owned by A). She tells me that the 2 executors had approached her and she had agreed to handle probate. Asked for my agreement but told me that she would consider herself instructed even if I did not agree. She suggested as a parting shot that if I did not agree I should seek independent legal advice.

I wrote back to her and to A, saying I had relied on his undertaking not to be instructed without my consent. A replied and said that the position had changed, because they had now approached him! He also said that he had been in touch with the SRA who had assured him that it was okay to proceed even if one executor does not directly instruct them.

They have given me a 7 day deadline to agree, but then they will go ahead anyway.
I phoned the SRA to see if he had explained the situation fully to them, but they would not discuss the nature of his enquiry with me or let me speak to their Solicitors's ethics helpline, only said that I should seek independent legal advice.

I know I can lodge a caveat in the meantime.

Can they do this? If they get A I will have absolutely no say in the handling of the estate.

[des8]

Briefly, if you wish to act for yourself , the solicitor acting for the other executors must keep you informed of the progress of the administration and obtain your agreement especially to the costs to be incurred.
You also have the option of appointing your own solicitor.
Obviously the duplication of effort will have cost implications.

Peridot will be able to explain better and in more depth, but you may have to wait until Monday for any input

[befuddledone]

Thanks DES8. All I want to do is to stop this firm of solicitors from handling probate. I want a new firm who will act independently to sort out this mess.

One of the new clauses is regarding a change to a trust within the will. The trust gives a vulnerable, disabled adult beneficiary (D) a lifetime interest in possession of the family home in which he currently resides. The new clause allows for this property to be sold and D to be moved into a flat. D has repeatedly said he does not wish to move and my father clearly states in his instructions that he does not wish D to be moved, particularly due to his disability. His instructions state that should D choose to move ( the implication being, if his health deteriorates, into a care home) the trust will cease. D is very well settled and comfortable in this home, where he has lived for decades. B had wanted him out of the family home and had had a loud argument with my father (witnessed by a family member) some weeks before the will was drafted, declaring that D should be moved into a flat, with my father refusing to agree to this.

I am sure that B is so very determined to have this solicitor act to administer the estate because she feels she will be able to easily convince A that she is acting with the best of intentions towards D when she has him ejected from his home. Recent comments by A in a letter to me clearly seem to indicate that B has already misrepresented my position on this matter, implying that I am trying to challenge the will in order to remove D's life interest. Quite the reverse!

If I challenge B's actions they will no doubt, once again, merely suggest that I seek independent legal advice.

Although D currently states that he wants to remain where he is, and is entitled to stay as long as he wishes, according to the will, we are of the opinion that B is starting a campaign of action to convince everyone that D cannot afford, and is unable to cope in this home. She has already stated, in front of several witnesses, (including the second solicitor that we met with) that D is barely coping there at all, even though all the evidence is very much that he is happy and coping well there. I think, once she has this will in the hands of A, she will move swiftly to work on D to convince him that he cannot afford to live there, etc and will work on his carers, social workers etc to get them on board with her plan. She has already made sure that she is the sole point of contact for a number of these agencies, which is making it very difficult for us to support D.

So, as you can see, myself and other family members (who are not executors) are desperately seeking to get this out of A's hands so that we can protect D.

And it is not just D she is attacking. I could write pages about how the other clauses that have been added will have a detrimental effect on other beneficiaries. She seems to have seized the opportunity to wreak revenge on the whole family (except for the one other executor, who trusts her and rubber stamps her every move!).

B knows I am not wealthy and is well aware that it would be a financial burden for me to keep having to get legal advice to query each action they take regarding the administration and no doubt she is relying on this in order to get her own way.

Any advice that could help me get rid of solicitor A would be greatly appreciated!

[des8]

Does anyone have an LPA for "D"?
From what you say he appears to have full capacity, but he is still vulnerable.
Possibly an organisation such as carersuk.org could give practical advice on how best to look to "D's" interests

[befuddledone]

Thanks.No LPA. D is intelligent but autistic. Very vulnerable to persuasion. Will look at that site. Have already thought about getting an advocate on board.

[des8]

"Very vulnerable to persuasion"
Possibly coercive, which within certain relationships could be psychological abuse.
? Section 76 of the Serious Crime Act 2015

What you describe seems to verge on what is variously referred to as psychological or emotional or mental abuse.

[befuddledone]

Will bear that in mind. Useful knowledge.

However B seems to have a habit of successfully manipulating people in circumstances in which you would not normally expect her to be able to get away with it. One family member, who has wised up to her behaviour, once said to me that B would make an excellent cult leader!

[des8]

Well obviously not everyone is taken in by her.
Hopefully Peridot will be able to give you more practical advice

[Peridot]

Hi Befuddledone,

What a nightmare for you. There are a few issues here. Is the Will executed correctly ie signed, dated witnessed correctly?
If the Will has been executed correctly then the assumption would be that the Will is valid unless it is being argued that your father did not have capacity to make the Will or that he was unduly influenced or had lack of knowledge and approval of the Will he then signed.

From your post it appears that you may be suggesting he was unduly influenced by Executor B? Unless you can evidence this you may be on a hiding to nothing exploring this avenue I'm afraid.

You mention the Will being poorly drafted. Setting aside the notes you have seen relating to Will instructions from your father, what is it you are concerned about in relation to the discretionary trust? Is it the fact that the beneficiary could be removed from the house and you do not believe this was your father's intention? In my experience it would be usual to have a clause included to allow a property to be 'changed' whether downsizing or selling. None of us know what will happen in the future so it would be a sensible inclusion. However you seem concerned that B wishes to sell the home sooner than you believe is necessary. Have you pointed out this reason for your concern.

You mentioned that you had sought some independent legal advice and they commented there were problems with the discretionary trust. What were the issues and what did they suggest? Was their advice on the basis that you believed the option for a downsize was not your father's intention or some other reason?

As other posters have suggested it can be a very expensive, stressful process challenging a Will. Having separate representation for executors although not unheard of, would usually only occurs where complicated estates require a particular specialist to deal with a specific aspect of the estate. In this instance it does not sound like this would be warranted, so if a second lawyer was instructed then the person instructing would be responsible for the costs. It could not be justified they be taken from the estate.

I wonder whether it would be sensible to set down in writing what the issues are that you see arising with regard to the beneficiary remaining in the house. I also thing that the beneficiary needs some support in this. Whether that be appointing their own attorney under a Lasting Power to help with decisions if their capacity diminishes or whether that means getting involved with his carers, social services etc if needed to keep tabs on what is actually happening and whether they are coping living alone at the property would be up to them of course.

What happens when the trust ends in the event the property is sold? Is B a residuary beneficiary?

It would always be expected that parties should try and settle matters and this may be a situation where mediation would help you all understand the issues that you have concerns about. You have intimated that the other executor has already suggested that your motives are to remove the life interest for D. You need to explain your issues you have with regard to the protection of D. Maybe you need to see the solicitors yourself alone to discuss the concerns you have and see how the estate can be dealt with so as to prevent the manipulation of D before making your decision?

There are ways to get an executor removed and once you have discussed your concerns with the solicitors, this may be something you need to consider. It does not necessarily mean that you and the other executor would remain as executors either that would be up to the Court.

It would be worth writing down what you believe should happen for D, in what circumstances the property should be sold, bearing in mind if D becomes unable to look after themselves or can't afford to remain at the property together with the other options that would need to be considered. Discussing with the other beneficiaries may help if they have also raised concerns. Raise your concerns you have about B and how you believe D may be persuaded out of the property.

How is the property to be looked after if D is unable to fund major repairs for example? I think there may be differing views on what should and can happen in respect of D's circumstances. It does appear that D may need support down the line to ensure their views are considered and this may be where an attorney could help.

If at all possible you need to find a way through this I would suggest by mediation, to ensure D is protected but also allowing arrangements to be changed if appropriate to the circumstances. You could also get some advice on what options are available to you in regard to having an executor removed and how the Will could be questioned further if this was deemed necessary. Seek some advice from the carersuk site as Des8 suggested also.

A lot to think about and explore. You all need to be clear about what issues there are and proposals for how they are dealt with. Hopefully then an agreement can be reached to enable the estate to be dealt with.

[befuddledone]

Hello Peridot,
I really appreciate your taking the time to write such a comprehensive reply. Thanks to DES8 too. Sorry that this response is so very long!

Challenge to the Will.
The will is properly signed, witnessed and dated. I added the information about the 'interference' in the will to give you the background. I am not going to challenge the will. I understand that court proceedings are very expensive, and do not wish to risk large sums of money on an unknown outcome.It is hugely frustrating, but I am realistic enough to know I cannot pursue this avenue. Believe me, if I thought that the case was solid enough to get B removed, then I would do so.

Executor B
This executor is a very controlling, unreasonable person. Her sole aim with regard to this will, we believe, is to dominate the family and financially punish several beneficiaries who have stood up to her in the past. I realise that you do not know whether she is in the right and I am misinterpreting the situation, but I can only say that I have many examples of her conduct, which include malicious attempts to financially harm family members, which I cannot post on a public forum. So, please, for the purposes of this discussion at least, believe me!

Mediation
B would not in any circumstances agree to mediation and refused when I suggested it.
She has lied and manipulated during the course of this whole situation. She now, no doubt, feels she has a winning hand.

Seeing Solicitor A
Solicitor A has already shown that he has no moral scruples, in my opinion, by his recent conduct, so I cannot see how my having a talk with him will help things, to be honest. He also would not see me alone, as he has previously stated to me.

Beneficiary D
is a vulnerable adult, intelligent but autistic (hence no LPA) but totally unworldly. He thinks B is acting in his best interests, as she buys him presents, so if anyone were to be appointed LPA it would probably be her.

Carers and Social workers
B has already contacted these various agencies and made herself the sole named person to be contacted with regard to D. She did that with my father, which led to many problems, and has now done the same with D. She is very charming and believable in person, so it is always hard to convince anyone that she is not acting with the best intentions. She always pulls out the 'I am helping my disabled relative' card.

The family home vs a flat
My father asked D if he wished to remain in the family home or move to a flat after my father's death. D responded that he wished to remain in the family home, and still says the same. My father specifically told me (and other family members, including B) that he did not want D moved into a flat.

The instructions given to Mr A stated that, should D wish to move out of the house permanently (into a care home or similar, if his health declined) the trust will finish and the house be sold and the proceeds distributed to the beneficiaries (a number of family members, including B and myself, but not D).

I am aware that adding a clause about a flat is a standard downsizing clause, often used for elderly widows who realise that a large house is too much to manage and want to move into a cosy little flat. I realise that A would have assumed it was such and may have added it to the will without querying it, for that very reason.

However, the circumstances are different here. D is autistic. He has lived his whole life in this house. The house (which is not large) is very close to all amenities and is a safe, familiar environment for D. D would feel very alienated and lost if forced to move into a flat, and thereby into another environment. He would not cope well for a whole variety of reasons. Service charges (which he does not have with the house of course) would not even make a flat any cheaper to live in, compared to his current home, particularly if it were to be a retirement flat with all their charges.

Financial Care for D
I know on the face of this, it could look like B wants to protect D's interests and ensure he has sufficient money to maintain the home and help with his living expenses.

But this is actually the opposite of what B intends to do, so we believe. She has already indicated that we would need to withhold a large sum of money in order to make sure we have enough to pay for the insurance, structural works etc over however many years D may possibly live, taking this money directly from the assets of the estate. This would mean that the other beneficiaries would receive nothing (or very little) immediately, when the estate is distributed after probate, instead of them receiving a reasonable share of the cash assets each as my father had intended. The will states that the same beneficiaries would share the proceeds of the house sale when the trust ends.

We also believe that B wishes to waste as much money as possible by various property transactions over time, so that the beneficiaries will eventually receive as little as possible if they outlive D. I know that this is a bold statement, but I can only say that I have a lot of reasons for believing this. Some of her recent behaviour and comments certainly have led family members to believe she wishes to move on to ousting D from his home as soon as she has A instructed.

I had found a second Solicitor, with whom we all met, who told us that a solution was to create a Deed of Variation, with all the beneficiaries agreeing a set lump sum to be set aside in this deed, getting rid of the insurance clause at the same time. I would happily have agreed to this and stated as such in the meeting. B refused to appoint this solicitor.

The Trust
Consists of one paragraph. It states D has a life tenancy and is responsible for maintenance and repair. A further 2 clauses allow for sale of the house to purchase a flat under the trust, or to sell in order to purchase land jointly with any other person (a concept a million miles away from my father's intention). And another clause states that the trustees are liable for insurance, structural repairs and improvements. No mention of any money being put into the trust to pay for the insurance etc.

Can Mr A, if appointed, go ahead and raid the estate without creating a Deed of Variation? I realise that even with a Deed they could still argue that a large sum of money be set aside for these future expenses, but if I cannot oust him, I would at least like to know where we would stand.

This has turned into a very long message. So sorry for this, but I am very keen you see the whole picture.

My only aim at this point is to do anything I can to get the administration handled by pretty much any local solicitor apart from Mr A! Any suggestions gratefully received!

[Peridot]

Hi Befuddledone,

As far as the payment of insurance etc is concerned this sort of clause is usual to ensure the property is maintained and insured and if needs be the 'pot' has to be kept until such time as the house is sold, which according to your father should be when D wishes it, not when he is told to do it (health permitting of course) I didn't mean to imply D was not capable of looking after himself at all and sorry if that's how it came across. My step son is on the spectrum too so I do understand. Is D in receipt of benefits? This may be another reason for the Will having been prepared in the way it has been to prevent any benefits D receives being affected.

Has a Deed of Variation been mentioned by solicitor A to sort out the issue of payment of insurance at the property? They can of course deal with any issues that arise in the Will themselves too although I appreciate you are sceptical about this. It may be worth a last attempt to persuade the other executors and residuary beneficiaries to use another solicitors but if they refuse it would be wise to be involved too. Once you have signed the Oath to obtain the Grant you would remain involved so decisions can't be made without agreement between all executors. Of course applications can be made to the Court's if matters are not progressing but you would be in a more powerful position to argue what should happen with the property and funding insurance etc if you are involved rather than the other executors applying to have you removed for example.

Would it be worth contacting the other executors and residuary beneficiaries to lay it out again the issues that you have and how these fears would be minimised if it was agreed another solicitor was used (which they could choose if they didn't want to go with the one you saw previously)? You can again point out what you believe your father's wishes were in relation to the house and D. You clearly have a handle on the issues that D would face if he had to move. In the future this may be appropriate but for now things shouldn't change for him. Maybe set a 5 year review date (or sooner or longer) that diarises when the situation for D should be reviewed not by B solely!

You seem to suggest that there are other beneficiaries who understood what your father wanted for D who may be supportive of your concerns? It would be worth trying to get you all together if possible.

I appreciate your concerns over the Will content but as executor you are meant to fulfil the will as presented unless you wish to contest the Will. While involved you can influence although I appreciate your worries concerning B's manipulative nature. It will be tough but you can also be the check and balance so to speak.

Are the executors to become the trustees of the trust also or are there other named trustees?

If you are unable/unwilling to contest the Will (which may not be required in any event but a Deed of Variation will be needed to ensure the trustees are able to manage the issues properly) then you are better placed to influence outcomes being involved I would suggest?

It is probably also important that D is dealt with correctly and it may be worth considering whether an independent person could be appointed to ensure his best interests are met. Maybe his specialist could help explain the need for him to have continuity rather than upheaval at this stage?

Sorry I can't be more helpful with suggestions. It is really tough and other than removing B which is not always straightforward and may mean that the other 2 executors are also removed, I am not sure what else to suggest. Happy to talk through issues to try and help clarify but you seem to have done all you can as far as obtaining a 2nd opinion etc are concerned and unfortunately the decision is now yours whether you wish to remain involved as executor. This at least gives you some control to the extent if any documents need signing such as property transfer forms etc all three of you would have to do this and you can ensure this is done for future documents too, rather than the executors being treated as joint and several (ie one can sign on behalf of the others).

Maybe someone will be along with other thoughts on how D can be protected to ensure he isn't bulldozed into decisions by anyone. I will tag slainte caragh as she may have some ideas how D can be 'given a voice' rather than being heavily influenced by others who's interests may not be quite so geared towards D's needs?

[slainte caragh]

I can indeed Peridot and thank you for tagging me!

Sorry I didn't jump in earlier, but my line of expertise is mainly social care and customer services. The whole probate thing *whoosh* on the last 747.

So, forgive me if I cover old ground but I am making sure that I am right in my assumptions.

Person D is a high functioning autistic who has a Social Worker and no POA because they have capacity to make decisions for themselves,

Person B is trying to force Person D out of a home that has been left to them.

Obviously I can't comment on how to put in objections, Peridot is the perfect person to help with that, but I CAN help with Person D.

First, a quiet reminder to the solicitor that under the Mental Capacity Act 2014 states people should be assumed to have capacity unless it is proved otherwise, and that to fail to adhere to this is not only discrimination but a breach of an Act of Parliament should bring them down a notch.

Contact the Social Worker and raise a concern under Safegaurding that there is potential for financial abuse. This includes stealing or using a vulnerable person's money, attempting to force a sale of a vulnerable person's home for financial gain and things as simple as a care worker (i,e me) using my Tesco clubcard on their shopping.

Ask about the Advocacy Service, they are AMAZING! They will speak on behalf of the vulnerable person and ensure everything is in that person's best interests. Believe me, no one with any knowledge of Autism will think that forceably moving the person will be in their best interests. It may be that it is suggested this person has a home support worker (again, I.E me!). We are a group of care workers dedicated to ensuring that disabled people live as independent lives as possible (ok now I sound like I'm in the A Team!). If this is suggested, don't worry. The support worker is just there to support that person

If I may, could I also point out (and this isn't a knock at anyone) that this is not a normal situation for this person to be in, so their behaviours may change, you can do vital work to stop this.

Sit down with Person D and explain it all. Be factual. Tell them what will happen, things like "Ok, I am going to TRY and help you to stay here. What will happen is, your social worker X will come in and ask you some questions, answer them truthfully, There is no wrong answer. If you aren't sure what to say, we can ask Y to do it for you, but you need to tell X that this is what you want. Lots of people will be coming and going, and you know what? That's ok."

If you need any help with the behaviours or any help with Autism at all please tag me. Simply type @ and then my name (so @ Slainte Caragh) and a list will come up,pick me and it will go blue. I will see it and come running.

best of luck hun

Callie

[befuddledone]

Thanks so much both of you for your responses. I have a very busy day ahead, trying to fight all this, but will respond at more length when I get a chance to catch my breath. Really appreciate your input!

[befuddledone]

Finally have a bit of time to respond.
Lots of food for thought. Thanks so much.

Sadly Peridot there is no scope for compromise, talking it through etc. Executor B is pushing this all forward in order to fulfil her own agenda, which in the view of at least 2 of us, is to create a position whereby she pushes D into a flat as soon as she can, and to use this life interest trust as a means to hold back/waste the rest of the inheritance so that the other beneficiaries do not get as much inheritance as they should. Its her way or the highway, as far as she is concerned.

Solicitor A was, we believe, hoodwinked into making some changes in the will, of which my father was unaware. Some of the minor clauses for instance, are vindictive towards family members, and I have some proof that this was not my father's intention. (Also, I knew my father and know that he would never have added such clauses).

This solicitor seems of the opinion that he can simply raid the cash assets of the estate, and set aside large sums of money to fuel the expenses of the trust, possibly over many years. He does not seem to consider it needs a Deed of Variation. 2 Solicitors I spoke with told me he is not allowed to do so, as the trust contains no money. However, if he handles the estate he will want to do so and if I refuse he will probably try to get me removed as executor.

I had very little respect for this solicitor when I saw how he handled the Will, but his recent conduct (which is going to be the subject of a SRA complaint) has left me more determined to prevent him handling the estate, if I possibly can achieve this. Not looking very likely at the moment unfortunately. I don't really want to discuss his conduct on a public forum, but it is well below the standard of conduct expected of him.

My father deliberately did leave it so that my brother paid all expenses towards the house. If he had been left money, it would have affected D's benefits, as you surmised. He had made other arrangements to help my brother out with expenses, but B has had her hand in that too, and that assistance is no longer available. Other family members would always help D out though, we will not let him get into financial difficulty. We only wish to avoid a situation where B uses this situation to pursue her own agenda, under the guise of helping D.

I think it would be hugely expensive to contest the Will, it is one of those situations where we have some proof, but probably not enough on its own, bearing in mind that B is a very convincing liar, with a way of charming people into believing her. So I cannot risk thousands on such an enterprise. I could threaten her with court and tell her the cost, however, she is well off and would probably say 'bring it on', as she knows that it would put more of a financial strain on me than on her.

I do wish to remain involved as an executor, unpalatable as it would be to deal with these people. I need to do what i can to protect D and the interests of the other beneficiaries.

I am making a few more efforts this week to see if we can find any basis for stopping A accepting instructions. Not very hopeful, but still trying! Otherwise I will have to join with them and fight from within, rather than being outside and looking on with horror as it all unfolds. This really is a nightmare!

[Peridot]

Hi Befuddledone,
Such a difficult situation. More about damage limitation it seems trying to prevent B doing exactly as they please. I hope you have some ideas from slainte caragh post with regard to supporting D. It seems many of you do have his best interests at heart. Hopefully together you can fight B.

Here if you need any pointers and support. There's always someone about who will try and help if they can.