Parents will and difficult Executor!

[SusanF]

About 27 years ago the youngest of my two brothers converted the barns and stables in the grounds of my parents house into his home. My parents gave him the plot, but got 3 estimates as to its value at the time. They then told us that when they died he would get £X less than the two of us. My parents drew up all the necessary paperwork, registered it all with the land registry (which my brother and his wife signed at the time) and built low boundary walls. At the time there were a couple of issues but my parents were adament the boundaries remained.

My mother died 9 years ago and my father 2 and a half years ago. They had mirror wills which stated the house be sold and the proceeds divided but my older brother and I should get £X more than the younger brother to reflect the building plot value. We were all three to be executors of the wills.

Since my fathers death, the youngest brother has been awful. He insists he is entitled to a bigger piece of land, as he has a copy of one of the three valuations my parents sought originally which stated he should have an extra portion of their garden. My parents didn't want him to have this land and adjusted the valuation accordingly. Initially he refused to sign the probate papers and was being as evil and bullying as he could, throwing allsorts of totally unfounded accusations and allegations at both myself and my other brother trying to bully us into agreeing to him having this land. Eventually he signed and we got probate but he now refuses to agree to the house being sold or anything until he gets this piece of land he says he is entitled to.

We are now two and a half years down the line, the house and grounds are deteriorating because it is so intimidating to go there, which is wrong. It is also costing us alot of money in Insurance, Council Tax, Electricity, Water and the like. It would be easy to throw in the towel but I know in my heart of hearts my parents didnt want him to have this extra piece of land. Our solicitor who drew up the wills and is acting for the three of us just says she has to stay impartial and cannot comment which I understand. Can anyone suggest a way forward or should I just throw in the towel.

Thank you for any help or advice you may be able to offer. I just want to draw a line under the whole thing and move on, which as it stands I cannot do.

SusanF x

[sloane82]

Re: Parents will and difficult Executor!

To be honest reading this if you all have signed the documents to agree to the terms then this is a legal agreement. With your brother being horrible he signed the agreement and knew of the facts that he signed into to be fair something is better than nothing obviously he is jealous that you got more than him. The Will that your parents wrote up is a legal document that they wrote up he could take you to court but as he signed the terms it is legally binding he could appeal and make things terrible for yourself but he wouldnt have a leg to stand on as he agreed the terms.

[des8]

Re: Parents will and difficult Executor!

If your sibling is refusing to administer the estate, you might like to point out to him that he becomes liable for the extra costs incurred.

Further, if there is more than one executor the majority must join in a contract for the sale of land, so I understand you and your other sibling can proceed with the sale.
As the land is registered, and your brother's portion also, he will have great difficulty proving he is entitled to any more land.

I'll try and find the statute referring to majority decisions by executors, but it is sometime since I've been there.:tinysmile_cry_t:

[SusanF]

Re: Parents will and difficult Executor!

des8,
That would be really helpful, thank you very much. As his property is in the grounds of the house, it is a shared drive which he has access over to get to his property. He has turned the whole area into nothing better than a travellers site and as it stands is unmarketable. He maintains it is making it look lived in!! He seems to have an answer for everything and think is hoping I will cave.
Thank you,
SusanF x

[des8]

Re: Parents will and difficult Executor!

Might be worth considering S50 of the Administration of Justice Act 1985, which allows for removal of personal representatives.

,Lewison J in Carvel also referred to the further guidance set down in Letterstedt as follows:
......
In cases of positive misconduct the court will have no difficulty in intervening to remove trustees who have abused their trust. However, the acts must endanger the trust property or show a want of honesty, a want of proper capacity to execute the duties, or a want of reasonable fidelity.
......
If the applicant can show that the hostility is preventing the trust from being administered, the removal is justified. -

If your appointed solicitor is acting for all three of you, it might be advisable to discuss the matter with a different solicitor specialising in contentious wills

[SusanF]

Re: Parents will and difficult Executor!

Thanks again des8,
How do I go about finding a solicitor who would specialise in such a field? Unfortunately until I receive my inheritance I have limited means, which is something else I think he is relying on!
Regards SusanF x

[des8]

Re: Parents will and difficult Executor!

As a start I would Google, "solicitors specialising in contentious probate in ....your area.."
This should throw up a choice.

Most will give you at least a 15 minute free consultation to enable you discuss the problems, and see if you want to hire them.

If you have household insurance you might have legal expenses insurance and they MAY assist.
If you have RAC legal Expenses cover they might help

[SusanF]

Re: Parents will and difficult Executor!

Many thanks des8, I would still be extremely grateful if you could find the majority decisions information to which you referred.

SusanF x

[SusanF]

Re: Parents will and difficult Executor!

25135591,

I think you misunderstood or I did not explain properly, he got the plot of land for which he has paid nothing. To make things equal he gets whatever sum my parents decided upon as the value of the plot at the time, less than my other brother and I when the house is eventually sold. As it stands at the moment he has had his plot for 27 years mortgage free and as yet my other brother and I have had nothing because he refuses to allow the house to be sold until he gets the extra land.

Thank you,
SusanF x

[des8]

Re: Parents will and difficult Executor!

Sorry, I have checked back through my files and the case I was referring to actually made provision in the will for majority decision of executors to prevail.

Unless that has been written into will, all executors will have to sign the documentation. I apologise for inadvertently misleading you on this point.

It would seem that if your brother doesn't act more reasonably you may have to act to have him removed.

Here are the comments from a firm of solicitors about that course of action:
The Court will not remove an Executor or Administrator lightly. The grounds for removal must be sufficiently strong and compelling to justify a remedy being sought.
There have been a number of Court cases in which this issue has been considered. These give us some helpful guidance on what Judges are likely to do in particular circumstances. However, each case is different and heavily dependent on its own facts. We would recommend you seek initial advice before embarking upon this path.
What is clear from these previous Court decisions is that mere friction or hostility between the Personal Representatives and Beneficiaries is not in itself sufficient for reason for removal. The Court will look at whether the relationship is having an adverse affect on the proper administration of the estate and whether the welfare of Beneficiaries is being prejudiced.
Evidence of misconduct, particularly in relation to financial dealings, will strongly influence the outcome. PR’s have a fiduciary duty to the estate. In particular they must not act in such a way that they gain personal benefit or endanger trust property. Where there is dishonesty or a lack of good faith then the Court is likely to act.
Similarly, Executors can be removed where they have failed to progress the administration of the estate within a reasonable time and have caused undue delay.
As with most contentious and litigious disputes the costs of legal action must be weighed against the likely benefits. In some cases the parties will feel they have no option but to take action, in others, a careful consideration as to whether the potential legal costs are likely to be proportionate will be required.
We would recommend that anyone who is involved in an Executor dispute takes specialist legal advice from an expert in Contentious Probate Litigation.
Really must recommend you seek professional advice

[des8]

Re: Parents will and difficult Executor!

25135591,

I think you misunderstood or I did not explain properly, he got the plot of land for which he has paid nothing. To make things equal he gets whatever sum my parents decided upon as the value of the plot at the time, less than my other brother and I when the house is eventually sold. As it stands at the moment he has had his plot for 27 years mortgage free and as yet my other brother and I have had nothing because he refuses to allow the house to be sold until he gets the extra land. Thank you,
SusanF x

You did say in post 1 that the gift of the land was registered.
What proof, other than a valuation, is your brother relying on to show he should have this extra ground?
Is it not possible for this extra plot to be valued and passed to your brother, the final accounting taking this into account?

Coming to some sort of agreement (even if it favours him) might be more beneficial than taking legal action.

[SusanF]

Re: Parents will and difficult Executor!

He has no other proof, my brother and I suggested we get it valued and he pay into the estate for it (which I wasn't altogether happy with because I knew my parents didn't want him to have it) but I would have gone along with. He refused point blank and said he wasn't paying for something he was entitled to!!

[MissFM]

Re: Parents will and difficult Executor!

Hi Susan,

Firstly, my absolute sympathy with your hurt and frustration.

Whilst in agreement with Des8's good advice, I have a couple of further thoughts you may like to consider.

- There must somewhere be a deed of gift or similar document which specifies exactly what your parents gave to your brother

- Did they specify that it was the then value of the gift of land that would be deducted from the overall distribution of the Estate upon your parents' death or was it a proportion of the whole? (Big difference)

- I would, in your shoes, dispense with your present solicitor and employ a specialist solicitor between yourself and the other brother

- In order to make your little brother get real - get an appropriately savvy accountant to draw up a selection of projections as to how this could pan out for him financially, eg

- The estate is apportioned according to your parents wishes and sold at the best price, with his previously gifted portion removed according to their wishes - several versions here, ie

- without the contested piece of land
- with the contested piece of land at today's market price included in (added to) his deducted share
- with his gifted land deducted at cost price at the time of the gift and the contested plot added at market value now
- with his gifted land deducted as a proportionate value of what the entire estate would have been at present day value
- with the likely costs of legal action deducted from the entire estate
- with the likely costs of legal action deducted from his share alone
- with the remaining property marketed at best price
- with the remaining property marketed with his present behaviour continuing (ie at an undervalue for obvious reasons)

And etc..

He needs to wake up to the fact that the remaining estate must be sold for best price and the proceeds distributed fairly.

It's a possibility that, by comparing the bottom line, he might realise that he is exposing himself to a huge financial loss by being unreasonable.

Obviously, there will have to be some compromise on all sides if you don't want to get into a "Bleak House" situation where only the lawyers win.

Wishing you the very best of luck with this.

[des8]

Re: Parents will and difficult Executor!

Oh dear.
There's nothing like a bereavement and inheritance to cause a family rift.
As he appears adamant and won't enter into a dialogue t looks as if you are going down the expensive road.
Just because he wants the plot, you as co-executor aren't entitled to just give away the estates assets, even if to a beneficiary/executor.
Common law fiduciary duties apply to the executors of an estate. The executors have a duty to all the beneficiaries.
If you and your brothers are the only executors and the only beneficiaries it may not matter too much, but if there are other beneficiaries they might get a bit miffed if you agree to giving the assets away.

[MissFM]

Re: Parents will and difficult Executor!

Crossed with you again, Des, but agree! x