Inheritance Help

[Amethyst]

Re: Inheritance Help

The coin collection could, I suppose, be classed as an investment item as opposed to chattels, but arguable if it was a day to day hobby rather than shut up in a safety deposit box somewhere.

The solicitors do have to give the worst case scenario, so it's good it is all spelt out although it sounds scary at this stage it is best to have eyes wide open.

Have they given him an opinion on the chances of success with the case ? I think he should try approaching a couple others - this doesn't seem too weighted in his favour - he may have to pay more if he wins the case, but it is important he is protected if he should lose and knows exactly what his risk is.

[HelpfulFriend]

Re: Inheritance Help

No opinion on chances of success. Mediation success fee 80%, trial success fee 90%.

[Openlaw15]

Re: Inheritance Help

I am very interested in what is meant by clause 9: Extended power of maintenance, and clause 19: Power of appropriation.

Very simply, clause 9 is a discretionary trust and clause 19 is a power of appropriation. The discretionary trust as it is says it's a fund that, at the trustees (solicitors) discretion (their choice basically) could choose to favour any beneficiary in terms of education, maintenance, income etc. A power of appropriation means the trustees have the power to take from the trust fund to gift beneficiaries. Discretionary trusts could be used to avoid tax or so that the settlor (ie trust maker, your late father) can manipulate the law so there is no need to be bound to favour any particular beneficiary including you. The problem is you're not named as a beneficiary to the discretionary trust anyway. Your entire rights are all your father's chattel (ie all moveable goods), and £20,000 in cash. Given the facts in the Court of Appeal's ILot 2015, the OP's friend likely be entitled to much more than the £20k, including the right to buy a property or but the property he is living at now. The court could interpret the discretionary fund against the deceased too, ie if the fund is discretionary the court will use it at their discretion to make reasonable provision for the Ops' needs, including an income amount, likely an increase from the 20k, too.

[Openlaw15]

Re: Inheritance Help

Thank you very much for all the replies. The Will is 7 pages long, I will try to post the first couple of pages.

The state of play so far: When the father died the son was told a new will had been made in his favour, the father's solicitor's denied all knowledge of this. I advised my friend to put in a Caveat, which was accepted. Subsequent enquiries at the solicitors found a member of their staff had visited the father at the care home Dec '15, but the existing will of 2007 was not changed.

The solicitors issued a Caveat Warning to the son, I advised him that as there was now no strong case for putting in an appearance to the Caveat, it would be financially too risky, as the solicitors/charities could have it overturned at Court, all costs being paid by the son.

Added to which the Warning was dated 8th March, posted 10th March, received 12th March, we understood left only 2 days to put in the appearance anyway.

The inheritance solicitors we approached have written to the father's solicitors, and the charities, giving notice, and are now awaiting a signed CFA agreement, and would like a decision on Monday, but the son is too scared by the potential costs to proceed.

Conditional Fee Agreement means, 'no win, no fee.' They would not take on a no win, no fee case if the prospects of success were not good.

[Openlaw15]

Re: Inheritance Help

No opinion on chances of success. Mediation success fee 80%, trial success fee 90%.

How much of a chunk will the solicitors take if they're successful all together is what you want to know.

[Openlaw15]

Re: Inheritance Help

The property was put up for sale by the executor solicitors. My friend was allowed very limited access under supervision to retrieve the chattels.

He is particularly upset that his father's coin collection, (which was a hobby) was taken by the solicitors after he pointed it out.

Also enclosed costs estimate from Case Fact Sheet.

The law of Wills requires: testator intent, subject (ie gift type/ conditions), and object, ie named beneficiary. Personal chattel basically means any personally owned item (ie your father's prior to his death) that is moveable: section 55 (X), Administration of Estates' Act 1925. Personal chattel satisfies the law of Will's subject matter. In short, the solicitor cannot take any personal chattel as it belongs to the Will's beneficiary. You're not being clear however. Are you saying the solicitor had taken the gold coins collection, or was it returned to your friend? If it was taken by the solicitor for the benefit of whom. Taken, how? I assume you mean taken to be sold to add to the estate? If the solicitor has taken the gold coins they must have had a saleable value. It does not matter whether the gold coins had or have any investment value the point is any investment value is the benefit to your friend (the Will's beneficiary 'my son) and not to the estate, as per your late father's Will's intent.

[Openlaw15]

Re: Inheritance Help

Thank you very much for all the replies. The Will is 7 pages long, I will try to post the first couple of pages.

The state of play so far: When the father died the son was told a new will had been made in his favour, the father's solicitor's denied all knowledge of this. I advised my friend to put in a Caveat, which was accepted. Subsequent enquiries at the solicitors found a member of their staff had visited the father at the care home Dec '15, but the existing will of 2007 was not changed.

The solicitors issued a Caveat Warning to the son, I advised him that as there was now no strong case for putting in an appearance to the Caveat, it would be financially too risky, as the solicitors/charities could have it overturned at Court, all costs being paid by the son.

Added to which the Warning was dated 8th March, posted 10th March, received 12th March, we understood left only 2 days to put in the appearance anyway.

The inheritance solicitors we approached have written to the father's solicitors, and the charities, giving notice, and are now awaiting a signed CFA agreement, and would like a decision on Monday, but the son is too scared by the potential costs to proceed.

A Caveat means where a persons want to challenge the Will before it goes to probate. The way I see it your friend either puts in a Caveat to argue a point of law, ie Common law in relation to 'gifts to adult beneficiaries where the deceased has not reasonably made provision for adult son/ daughter,' versus 'the rights of charities to the whole lot,' without a fight! If the son gets a no win, no fee agreement, all court costs will either come out of his money (if he's successful), or won't have to pay them if he is not successful. Ie NO WIN means no fees at all.

[HelpfulFriend]

Re: Inheritance Help

I agree a no win means no fees. Unfortunately it does not mean no costs or expenses. The solicitors can end the agreement at any time of their choosing, and all expenses are due up to that date. This is totally open ended commitment, which is unaffordable, in this case.

[Openlaw15]

Re: Inheritance Help

I agree a no win means no fees. Unfortunately it does not mean no costs or expenses. The solicitors can end the agreement at any time of their choosing, and all expenses are due up to that date. This is totally open ended commitment, which is unaffordable, in this case.

Ok, let's say things do cease. If the solicitors did that it would be unfair as the solicitors are covered under liability insurance anyway. The solicitors look at the prospects of taking cases on No Win, No Fee, ie the 'risk factor.' There is also law dealing with this, ie the CFA Regulations 2000 in addition to case law developed through CFA common law. Even in worse case scenario, if your friend is on benefits and has no property interests as any claims via solicitors would be based through the local courts probably, your friends defence is that he should not be liable for any expenses or costs as the solicitors claims were apparently protected by their own liability insurance to deal with problems and in any event it defeats the access to justice Conditional Fee Agreements' as a practical measure.

[HelpfulFriend]

Re: Inheritance Help

Ok, let's say things do cease. If the solicitors did that it would be unfair as the solicitors are covered under liability insurance anyway. The solicitors look at the prospects of taking cases on No Win, No Fee, ie the 'risk factor.' There is also law dealing with this, ie the CFA Regulations 2000 in addition to case law developed through CFA common law. Even in worse case scenario, if your friend is on benefits and has no property interests as any claims via solicitors would be based through the local courts probably, your friends defence is that he should not be liable for any expenses or costs as the solicitors claims were apparently protected by their own liability insurance to deal with problems and in any event it defeats the access to justice Conditional Fee Agreements' as a practical measure.

If my friend had no assets at all I would tend to agree with you, but maybe it has been noticed that he has a legacy of £20k due from the estate, which could possibly be all swallowed up by costs. The case sheet details (above) say that expenses of mediation only could approach over £20k.

[Openlaw15]

Re: Inheritance Help

If my friend had no assets at all I would tend to agree with you, but maybe it has been noticed that he has a legacy of £20k due from the estate, which could possibly be all swallowed up by costs. The case sheet details (above) say that expenses of mediation only could approach over £20k.

Lawyers are regulated. The solicitors cannot unfairly stop the case and any success fee must be proportionate. The letter your friend got with the CFA terms of business is just standard. If the lawyers take on the case on CFA basis there must be at least a benefit of receiving twice as much as the risks involved. Let's says the risk is valued at 4 so the benefits must be at least 8. What am saying the risk of costs must be valued at only half of the amounts were your friend to be successful.

[HelpfulFriend]

Re: Inheritance Help

Lawyers are regulated. The solicitors cannot unfairly stop the case and any success fee must be proportionate. The letter your friend got with the CFA terms of business is just standard. If the lawyers take on the case on CFA basis there must be at least a benefit of receiving twice as much as the risks involved. Let's says the risk is valued at 4 so the benefits must be at least 8. What am saying the risk of costs must be valued at only half of the amounts were your friend to be successful.

I do understand what you are saying, and I realise the terms of business are standard ones, and very well detailed. However this is all fine in theory, but my friend is already in dire financial circumstances, and cannot afford the risk, albeit unlikely. The Citizens Advice Bureau have pdf file on this, (personal injury no win no fee), and although not strictly applicable, raises deep concerns about the no win no fee process. It can be found on this page:

https://www.citizensadvice.org.uk/la...y-fact-sheets/

[HelpfulFriend]

Re: Inheritance Help

To quote from the above CAB fact sheet:

"If you enter a 'no win, no fee' agreement, you won't have to pay your solicitors' fees if you lose (although you may still have to pay some expenses). If you win, you will have to pay your solicitors' fees and these will be much higher than if you lost your case.
You should think very carefully before entering a 'no win, no fee' agreement as, win or lose, you may still have something to pay, and this can often be much higher than you might expect."

[Amethyst]

Re: Inheritance Help

Which is where the insurance kicks in... I think you should get some quotes from other firms, and opinion on chance of success. Ilot v Mitson in mind.... any action taken will probably be held up by that going to the Supreme Court - but it is necessary to get things kicked off. There's too much at stake to just walk away because one firm haven't made it very clear what costs could be involved. The insurance premium may not be as much as he fears ( I honestly have no idea how much they might be and presumably it is based on assessment of the case, but I think a quote before signing a contract should be dealt with)

[Openlaw15]

Re: Inheritance Help

To quote from the above CAB fact sheet:

"If you enter a 'no win, no fee' agreement, you won't have to pay your solicitors' fees if you lose (although you may still have to pay some expenses). If you win, you will have to pay your solicitors' fees and these will be much higher than if you lost your case.
You should think very carefully before entering a 'no win, no fee' agreement as, win or lose, you may still have something to pay, and this can often be much higher than you might expect."

The CAB is brilliant for what it does but it's not a legal entity in that its advice is provided by legal professionals. I understand what you're saying about your friend losing his 20k legacy, of course i do; but, this does not mean that his chances of success are low. What you need, as Amethyst above also alludes, is enough information as to likelihood of costs including potential success fees and or the likely expenses involved, to make a fair assessment as to whether your friend should contemplate the risks with any likelihood of gains were he to be successful. Let's make no mistake, 20k of anyone's money is a serious amount of cash and must not be put at risk. However, what your friend needs is up to date advice on or for the prospects of winning whether these be low, fair (ie average) or high in terms of the current law that is common law ratios (binding decision part from the precedent) rulings, ie Court of Appeal and the inevitable Supreme Court ruling. So, likewise I also concur with Amethyst in that you should shop around to see which lawyers are best for you. It'll likely be barristers more than solicitors who'll be doing the legal arguments in court and more likely the solicitors doing the donkey work. So in my view you'll need the barrister's view of it, which you should ask the solicitor to provide you. All's this should be undertaken when the solicitor determines your prospects of success or the losses etc.