Recovering a debt owed to the deceased estate

[Margaret0712]

My mother passed away recently. She was owed £30k by my brother who had borrowed the money from her 3 years ago and has always refused to pay it back. Would the executors of her will be able to recover this debt from my brother which he now owes to my late mother estate, and if so do the executors have a time limit within which to recover this debt? Any help would be most appreciated, thank you.

[atticus]

Is he due any inheritance from which this debt can be deducted?

[PallasAthena]

In principle any debt that was owed to your late mother is now owed to the Estate and the Executors not only have the power to recover it but also the duty to do so if they are able to. Executors have the same power to bring a court claim against your brother as your mother would have had.

The practical problem in family debts like this is often that they are poorly documented with no formal loan agreements. The person who the money was loaned to may claim it was a gift not a loan. Or that it was indefinite loan only repayable when the person was able to afford it. The lack of evidence can make it difficult to pursue an action in court.

[Margaret0712]

Thank you for your replies.

My brother was disinherited from my mother's will shortly after she loaned him the money due to his behaviour and his refusal to make any contributions towards the loan. We don't know yet as to whether my brother may contest the will, probate was granted only 3 weeks ago. There was no formal agreement drawn up. My brother openly admits to receiving the money but argues that there was no repayment agreement between the two parties.

If the executors decide that there was sufficient evidence to recover the debt, then will they need to act within a set statutory time limit, or can they choose to act at any time in the future?

[PallasAthena]

Margaret0712 As far as your brother making a claim under the Inheritance Act 1975 is concerned he has 6 months from the date of the Grant of Probate. So you might want to wait until that period is expired before taking action so that you taking action to recover the loan doesn't prompt him to make a retaliatory Inheritance Act claim. But don't mention to him anything about even the existence of the Inheritance Act, it might give him ideas!

It may be a good idea, now you have Probate, to put a 'Deceased Estates Notice' in The Gazette and a local newspaper (I assume you are in England). This will help protect the Executors against any counter-claim he might make against the Executors personally. The cost of it you pay from the Estate. See this page The duties of an executor: what to do when someone dies | Wills and Probate | The Gazette and scroll down to 4. Placing a deceased estates notice

Hopefully one of the lawyers here can confirm this, as I am not a lawyer, my understanding is that you have 6 years in which to bring a claim in court to recover the debt. I'm not sure exactly when that 6 years starts running in a case like this but as the loan was only made 3 years ago you have plenty of time and can afford to wait until the 6 month Inheritance Act period has expired.

As you say, you will need to decide whether you have the evidence to start a claim. We're talking a large sum of money here though, £30,000. If I were in your position I'd be prepared to pay a solicitor to review all the evidence and advise on the chances of success.

EDIT And you'd need to satisfy yourself that your brother has enough assets or income to pay the £30,000 if you won in court.

[atticus]

Trite law: in the absence of other terms, a loan is repayable on demand. This debtor's position is wrong.

[maryam]

Did your mother's will include mention of your brother and why he was being disinherited, particularly is the loan amount/expected repayment detailed?

[Margaret0712]

Hi Maryam,
My mother made no mention of my brother in her will, nor did she mention anything about the loan. I suspect that the will contains a 'Letter of Reasons' in relation to why she has disinherited my brother. I do not know the content of the letter of reasons. Correct me if I am wrong but the letter of reasons can only be disclosed if the will is contested?

[JJW]

Margaret

Request Larke v Nugus letter, - it will show all notes the solicitor made on a will prepaortion statement.