Joint account money taken- who does it belong to?

[Steve65]

I'll keep this brief and to the point.

My Aunt (single) recently passed away, her brother (single) lived with her for the past 20 years in her house. She had a joint account with him, with over £60,000 in, although 100% of all of the money in the account was put in there by her. Her previous Will left equal shares of the estate to him and 4 other sisters. Just before her death she changed her Will and left her entire estate to just one sister. The brother gets to stay in the house and all of the sisters are happy about the Will being changed. Days before her death my Aunt wanted to withdraw the money from the joint account but couldn't due to very ill health, this was witnessed by several people.

He has without anyone's knowledge removed the money from the account and placed it into his own account. When asked about this he said it was his money and that we should f*** **f.

I am one of the Executors and I have an appointment with my solicitor but due to her holidays its in 3 weeks time. I did manage to have a brief word with another solicitor, and although he could not be specific about the case he says that we should presume that the money contributed by the deceased should fall within her estate and it will be for the brother to prove that it was her intention that the funds should go to him.

This has caused a massive rift in the family with people taking sides. Just wandered if anyone has any words of wisdom to tide me over for the next 3 weeks?

Regards,
Steve.

[des8]

Re: Joint account money taken- who does it belong to?

Hi and welcome.
I don't envy your position!
I think your solicitors comment was a little simplistic, and that you are heading for acrimony within the family.
Joint accounts are usually held as"joint tenants" rather than "tenants in common" and by right of survivorship the balance passes to the survivor.
BUT it depends on what else was agreed between them,the reason for opening the account and how the account was operated.

HMRC will be interested in the joint account,and it cannot be assumed they will accept ownership as 50/50.
If the balance on the account has passed to the survivor, he will be liable for IHT on that account.
You will have to provide a fair bit of information about that account to HMRC.
The position could be quite complicated.

Advice>>>be calm andremember you are one of the executors, and a breach of your duties (due to browbeating by relatives ?) might cost you dearly down the line.

[Openlaw15]

Re: Joint account money taken- who does it belong to?

I'll keep this brief and to the point.

My Aunt (single) recently passed away, her brother (single) lived with her for the past 20 years in her house. She had a joint account with him, with over £60,000 in, although 100% of all of the money in the account was put in there by her. Her previous Will left equal shares of the estate to him and 4 other sisters. Just before her death she changed her Will and left her entire estate to just one sister. The brother gets to stay in the house and all of the sisters are happy about the Will being changed. Days before her death my Aunt wanted to withdraw the money from the joint account but couldn't due to very ill health, this was witnessed by several people.

He has without anyone's knowledge removed the money from the account and placed it into his own account. When asked about this he said it was his money and that we should f*** **f.

I am one of the Executors and I have an appointment with my solicitor but due to her holidays its in 3 weeks time. I did manage to have a brief word with another solicitor, and although he could not be specific about the case he says that we should presume that the money contributed by the deceased should fall within her estate and it will be for the brother to prove that it was her intention that the funds should go to him.

This has caused a massive rift in the family with people taking sides. Just wandered if anyone has any words of wisdom to tide me over for the next 3 weeks?

Regards,
Steve.

Ok, why was the Will changed at the last minute especially immediate to death. Why would the sister get the lot instead of equal shares between the 5 beneficiaries? Alarm bells? What was the deceased's health like at that point? If their health was bad the Will could technically be challenged by getting a Caveat (temp stops the Will's distribution for 6 months) and there is case law to this effect. The caveat can be removed (ie the person change their mind) up to the point of Appearance (ie formally registered). However, the ones who benefit from the current Will, their solicitor is likely to issue a Warning to the Caveat, meaning the person with the Caveat has to list the grounds of challenge within 8 days of the Appearance to the court (i think). The solicitors challenging the Caveat are likely to ask for a costs order against if they're successful. So, it just depends on the facts ie was there undue influence, was the person prior to their death under the influence of medication or so sick they could not have had legal capacity, ie sufficient mental faculties to know what they were doing etc.

[des8]

Re: Joint account money taken- who does it belong to?

... but as the sisters are are happy about the Will being changed why should there be a challenge?
This was solely a question about the position of funds in a joint account.

[Openlaw15]

Re: Joint account money taken- who does it belong to?

... but as the sisters are are happy about the Will being changed why should there be a challenge?
This was solely a question about the position of funds in a joint account.

The brother could challenge the Will so the executor needs to be aware of that. The joint bank account normally passes to the survivor unless there are statements perhaps challenging this presumption in the Will's terms.

[des8]

Re: Joint account money taken- who does it belong to?

My understanding has been that assets held in joint names pass to the survivor outside of the estate and regardless of the terms of the will.
That is why he is unlikely to challenge the will.
However the executors need to ascertain why the joint account was set up (was it just to facilitate the deceased's access to her funds if she was inapacitated and unable to attend to the bank, or to allow him access to the funds to maintain the property).
It may never have been the intention to set up a "normal" joint account (as e.g. between spouses), and to an extent this is evidenced by the witnessed desire of the depositor to withdraw the funds shortly before her passing.
For IHT the executors need to obtain details of the balance on death, the amounts deposited by each party, the amounts withdrawn by each party.
There is the question of IHT, and also if the deceased was the only depositor any funds withdrawn by the survivor may be classed as gifts by HMRC, with consequent tax implications (including even income tax
possibly)

[Openlaw15]

Re: Joint account money taken- who does it belong to?

My understanding has been that assets held in joint names pass to the survivor outside of the estate and regardless of the terms of the will.
That is why he is unlikely to challenge the will.
However the executors need to ascertain why the joint account was set up (was it just to facilitate the deceased's access to her funds if she was inapacitated and unable to attend to the bank, or to allow him access to the funds to maintain the property).
It may never have been the intention to set up a "normal" joint account (as e.g. between spouses), and to an extent this is evidenced by the witnessed desire of the depositor to withdraw the funds shortly before her passing.
For IHT the executors need to obtain details of the balance on death, the amounts deposited by each party, the amounts withdrawn by each party.
There is the question of IHT, and also if the deceased was the only depositor any funds withdrawn by the survivor may be classed as gifts by HMRC, with consequent tax implications (including even income tax
possibly)

Joint tenancy is a legal right, ie title is held together but not shared until severance or it comes to an end. However, there are also equitable rights, in that if a property (ie home) were jointly owned the owners at the point of severance in equity are presumed to have equal shares. If it is a business the opposite applies, a there is a presumption of unequal shares. However this presumption could be also be rebutted in that it is possible to argue that there should have been unequal shares for the family home etc. I see no reason in principle why equity (that is the courts of equity) will not step, potentially anyway, in a joint bank account situation on the person's death especially as the brother, on the facts, never put in a penny (ie 100% sister).

There are some equitable cases: the person does all in their power to either make a gift or stop a gift potentially. There is also another equitable case, donatio mortis causa, which applies where a person is either dying, at death's door, or very sick where death is inevitable, ie a terminal illness. In the DMC case a person does not have to complete a gift transfer, ie sign a property into another's name. I see no reason in principal why equity would not work in reverse ie remove proceeds from a joint bank account. On the facts the Op's sister was dying and there were witnesses. In law, a person can change their mind what to do with gifts rights up to their death. As said sister contributed 100% (ie all) of the £60,000 it is arguable a gift - putting it another way, how can one legally own (title) something he or she never had to begin? So, therefore it's possible to argue that the brother only ever had equitable ownership.

[Openlaw15]

Re: Joint account money taken- who does it belong to?

I'll keep this brief and to the point.

My Aunt (single) recently passed away, her brother (single) lived with her for the past 20 years in her house. She had a joint account with him, with over £60,000 in, although 100% of all of the money in the account was put in there by her. Her previous Will left equal shares of the estate to him and 4 other sisters. Just before her death she changed her Will and left her entire estate to just one sister. The brother gets to stay in the house and all of the sisters are happy about the Will being changed. Days before her death my Aunt wanted to withdraw the money from the joint account but couldn't due to very ill health, this was witnessed by several people.

He has without anyone's knowledge removed the money from the account and placed it into his own account. When asked about this he said it was his money and that we should f*** **f.

I am one of the Executors and I have an appointment with my solicitor but due to her holidays its in 3 weeks time. I did manage to have a brief word with another solicitor, and although he could not be specific about the case he says that we should presume that the money contributed by the deceased should fall within her estate and it will be for the brother to prove that it was her intention that the funds should go to him.

This has caused a massive rift in the family with people taking sides. Just wandered if anyone has any words of wisdom to tide me over for the next 3 weeks?

Regards,
Steve.

I don't think your solicitor is right - joint account means legal ownership, ie title. So, the estate, on behalf of the sister, has the burden of proving that the joint account should only ever be presumed equitable (ie beneficial) probably based on the reasons I provided above. Legal means watertight so equity must challenge any presumptions to the contrary.

[des8]

Re: Joint account money taken- who does it belong to?

I don't think your solicitor is right - joint account means legal ownership, ie title. So, the estate, on behalf of the sister, has the burden of proving that the joint account should only ever be presumed equitable (ie beneficial) probably based on the reasons I provided above. Legal means watertight so equity must challenge any presumptions to the contrary.

As said in layman's language in post 2

[Openlaw15]

Re: Joint account money taken- who does it belong to?

Hi and welcome.
I don't envy your position!
I think your solicitors comment was a little simplistic, and that you are heading for acrimony within the family.
Joint accounts are usually held as"joint tenants" rather than "tenants in common" and by right of survivorship the balance passes to the survivor.
BUT it depends on what else was agreed between them,the reason for opening the account and how the account was operated.

HMRC will be interested in the joint account,and it cannot be assumed they will accept ownership as 50/50.
If the balance on the account has passed to the survivor, he will be liable for IHT on that account.
You will have to provide a fair bit of information about that account to HMRC.
The position could be quite complicated.

Advice>>>be calm andremember you are one of the executors, and a breach of your duties (due to browbeating by relatives ?) might cost you dearly down the line.

The solicitor was not just simplistic, this legal professional in the interim period has not provided you with good advice. The burden seems more likely on the estate and not the brother.

[Openlaw15]

Re: Joint account money taken- who does it belong to?

The solicitor was not just simplistic, this legal professional in the interim period has not provided you with good advice. The burden seems more likely on the estate and not the brother.

Playing devil's advocate here. If the estate try to claim the joint account proceeds back, the brother's lawyer, if he's good, will argue the sister never had legal capacity, which without makes the Will void. The capacity issue is that the sister's mind was so affected by her sickness, or her being close to death, that impairs her in mind, meaning the Will is not valid. How much would the brother's 5th of the estate have been worth in monetary value? We know the joint account was £60k. If the estate interest was worth more, perhaps it's best letting him keep the £60k. How much will the legal fees cost on top of this?

[des8]

Re: Joint account money taken- who does it belong to?

Bit of a leap to argue testator was not capable when changing her will when all we have been told is that she was suffering very ill heath a few days before her death!

[Openlaw15]

Re: Joint account money taken- who does it belong to?

Bit of a leap to argue testator was not capable when changing her will when all we have been told is that she was suffering very ill heath a few days before her death!

Regardless, it gives rise to a presumption of lacking capacity, and this is what a good lawyer will jump at. Very ill health is a red flag straight away so there is a presumption the Will should be void.