are delays normal

[Guest]

Are delays normal? 3 months ago my solicitor asked my barrister to start proceedings, I have heard nothing (litigation case where executor has kept the whole estate for themselves, not shared as per will)

[Peridot]

Hi Guest,

If you have been advised litigation is appropriate and in fact instructed the solicitor to issue proceedings I am unsure why the barrister is involved? It may be that the barrister was instructed to prepare the particulars of claim or give an advice on the potential claim overall, but I would have thought in either of these scenarios the barrister's work should have been completed by now.

It would then be necessary for you to check the claim form and particulars before signing them and the claim being issued at the Court, or your being provided with the barrister's advice before deciding whether issuing proceedings is appropriate.

If you haven't already I would strongly recommend contacting your solicitor to see what is going on. It may also be worth checking whether the solicitor is waiting for money on account in order to start work on the file?

Hopefully you'll find out the reason for the delay and then be able to progress matters.

[Ferret25f]

I have had a meeting with the barrister about a year ago he said my solicitor should get more information (Defendant has not been forthcoming) so solicitor asked to start proceedings 3 months ago (Fees paid as requested) I have today rang solicitor they said that the barrister has now said the claim is against the estate of the deceased not the executor who has all the proceeds. The second executor should be taking the action not me and the costs should be met by the estate. When I say “Solicitor” she was a “paralegal” when I started 2 years ago and is now a “Trainee Solicitor”

[Peridot]

Hi Ferret25f,

So what are they doing about it? What type of claim have they suggested? Are you a beneficiary under the Will for a specific sum or item or are you a residuary beneficiary under the Will so expect to receive a share of the amount left once debts, testamentary expenses and specific legacies have been paid? Has the lawyer (or you) contacted the other executor? If you have what if anything have they decided to do?

If the executor has acted so negligently or defaulted it is sufficient to be a breach of trust or fiduciary duty (eg not carrying out the provisions of the Will) then a beneficiary can bring a claim. What reason has the barrister/lawyer given for why the other executor needs to bring the claim?

Did you receive an advice from the barrister originally, or is that the 'get more info' advice? If that's the case were they concerned the claim may fail if the information was not available or could they not confirm their advice on what action to take without the information?

The fact the paralegal/trainee is working for a law firm does afford some protection, assuming they are a regulated firm (which if they have trainee solicitors they should be). The trainee should also be supervised, so if needs be you could ask to discuss the potential claim with the supervisor and the trainee. You should also have been informed in writing who the supervisor is.

[Ferret25f]

My father is the deceased, my sister the defendant, My father's will said estate split equally between us, before he died she persuaded him to sell his house so that he could move nearer to her in to a sheltered accommodation, she spent most of the proceeds on buying herself a house and put my father into a care home, we have my fathers bank statements that show £22k also transferred to her account and a further £22k taken out of atm’s both over a period of 5 years prior to his death. The second executor has been powerless as when he asks for things like bank statements he is told he needs to produce the original will or needs permission of the other executor (the defendant) and the defendant will not agree, we have been trying to get the defendants bank statements from her to see where the money has gone but she doesn’t cooperate at all.

The barrister originally said 'get more info' these documents were requested from the defendant but as usual were not forthcoming. Today when I rang the solicitor she said she was waiting to see her supervisor (but he was away at court) she was not sure how to proceed and was concerned as I had already paid the barrister and he had now said the estate should pay the costs, not the defendant as I had been led to believe

. I have not been given a reason why the other executor needs to bring the claim. I was led to believe at the meeting with the barrister a year ago and by my solicitor 3 months ago that the court would recognize I had a claim, I would have to get a local estate agent to value the house the defendant had purchased in her name with my fathers money (she has already admitted she did not have his permission to do so). The house would then be sold and the proceeds put into my fathers estate which would then be dealt with as per his will.

[Amethyst]

How was the care home paid for ?

[Ferret25f]

Care home records show payment amounts and dates but not who paid, only in for 10 months , about £32k in total. Dads house sold cheap £230k for quick sale and not advertised, value at the time £260k. House puchased 100miles away in defendants name £150k (not a previouse home owner , on benifits from a council flat!) also a year before his house was sold he had £20k in savings accounts, all emptied before death, not by him, he was blind for last 25 years!

[Amethyst]

Do payments to the care home show on your fathers bank statements ? If not they may have been paid by your sister from the transferred money - so might be worth making further enquiries on that side of things.

we have my fathers bank statements that show £22k also transferred to her account and a further £22k taken out of atm’s both over a period of 5 years prior to his death.

Did your sister have power of attorney as far as you know ?

Any idea if he still had a mortgage over the property that was paid off by some of the proceeds of the house sale ?

Your sister is named as executor in the will, who is the other executor ?

[Ferret25f]

She had the old enduring power of attorney that was never registered, he was assessed as competent by his solicitor at time of house sale but he said to them that he was selling to get a sheltered bungalow near to my sister in a local village. He ended up three months later 100miles away in a care home. She also had him cremated when in his will he wanted his body donated to science! And told no relatives or friends of the cremation!

No mortgage on sold or purchased property.

The other executor was his neighbor of 55 years that use to help him with mail etc when his eyesight failed, he has done what he can but is getting no cooperation.

[Ferret25f]

Back to my first post “are delays normal”

My dad died March 2015 after trying the police/action fraud I took on a solicitor in November 2015 who said it would be sorted in 18 months, due to little happening and poor communications I changed to my current solicitor in November 2016 who told me the same 18 months , here we are 28 months and still no movement, its not unusual to wait 3 months with no contact so I have to chase them up , is this normal procedure with solicitors?

[Amethyst]

Peridot

It doesn't sound very good - it's nearly 4 years since your father passed and over 3 since you contacted a solicitor .... are they instructed to be doing something following obtaining the barristers opinion/advice ?

[Peridot]

Hi Ferret25f again,

Unfortunately delays can often happen. Estimates for timescales is not an exact science. When presented with a problem the lawyers probably have experience of the type of issue so they can give a rough estimate. However there are inevitably other issues that come to light further down the line that can increase the estimates both in time and cost unfortunately. However you should be kept informed of this. I don't think people mind delay if they know why and are given the options.

Some law firms are better than others and it seems to me a big part of the problem for you is lack of communication from your lawyer letting you know what is going on. The problem you then have particularly where you have already had a couple of poor experiences with you having to chase, is starting the clock again if you find another recommended firm. Yet more money and time will be added to this matter while the new lawyer familiarises themselves with the file. Are you using a contested probate specialist?

IMO I would firstly speak to the lawyer and see if you can come to some sort of agreement as to how often you can expect contact, pointing out the issues and the length of time it appears to be taking and the fact that you appear to be doing the chasing for updates at the moment, your main issue being that you thought matters were progressing and apparently they have stalled.

If you stick with the current firm do check your bills carefully. If you are consistently calling for an up date (I'm not talking daily here which would be unreasonable, but maybe every 2-3 weeks if you are expecting something to be happening) then you should question your bill. The firm should provide a time sheet of charges with their bills.

The other option would be to get another opinion maybe a reduced fee initial appointment to see what another contested probate specialist says. Of course the current firm won't release the file until all bills are paid but it is then yours to pass to whoever you wish.

[Ferret25f]

I thought that at the meeting with the barrister a year ago he said the solicitors were to get the defendants bank statements and other documents then he would put the case to a court (Birmingham) who would look to see if I had a case, if I did then they would set a court date!? But now when he was asked to proceed he has said that the co executor should take it to court as the representative of the estate!? Now waiting for solicitor’s supervisor to look at it as the solicitor isn’t sure what the barrister is saying!!

Are these delays normal or should I be complaining to the company, I always emphasize I want to be kept informed and often phone on a Friday only to find that they had received correspondence a week before and not told me or not acted on it.

[Ferret25f]

I have had no bills! I have paid for the first consultation and the 2 times the barrister has been contacted (meeting a year ago and 3 months ago when asked him to proceed to court)
This is not a contested probate specialist as it hasn’t gone to probate, this is a litigation / family law specialist.

[Peridot]

Hi again,

So you need the solicitors to put pressure on the executors solicitors for the information. The issue you may have is it appears that a lot of the transactions occurred while your father was alive and allegedly able to make his own decisions. There would be no obligation on the executor to provide this sort of information only info they have obtained since your father passed away.

Did the other executor sign the Oath to obtain probate or did they renounce their role? If they were still the named executor then they should have seen the accounts information as they would also have had to sign the IHT forms to obtain the Grant.

The executors have a responsibility to gather in the assets, deal with liabilities and administer the estate. This would include for example pursuing any claim that was open to your father during his lifetime. I wonder if this is what the barrister is suggesting? Did you receive a copy of the barrister's advice? If not it may be helpful to ask for a copy, then you can see exactly what they were suggesting.