Next move after a Caveat.

[victor meldrew]

Hello.
My mother died 10 weeks ago, some 5 years after the death of my father.
When they were both alive they told me and my sister that they had left half of their estate in their Will to each of us.
We are/were their only children.
My sister has three adult children as do I. Over the past few years, my sister and one of her children have been taking care of the day to day things that crop up for my mother like hospital appointments, shopping and the cooking of a Sunday dinner.
They both live in their own houses, my sister is about a mile away and son lives a few houses from my mother.
I live 30 miles away and saw much less of mum.
It seems that just prior to her death mum became very ill, but despite this I was not informed of that situation by my sister. I was though sent a 2 line text by her son after mum had died saying 'mum has died this evening at home'. No other information given. The next day I contacted mum's solicitor in order to inform them of what had happened and to confirm my contact details. The solicitor did not reply. A week later I received a phone call from my sister saying that she and her son had been to see mum's solicitor and had the Will read to them. I was to be given 15% of the total estate with the remainder going to my sister and her three children. My children have not been mentioned.
My sister also told me that her son had taken my mum to the solicitors a few months ago in order to make some changes to her Will.
I contacted the solicitor and asked why it was that I had not been invited to the reading. Again, they did not reply.
I then heard that my sister's son had been abusive to her after hearing that she had phoned me. He took her phone from her and destroyed it.
I contacted the solicitor, this time asking if if I can have a copy of the Will. No reply again.
In order that things did not get out of hand I requested a Caveat in order to put things on hold and give me time to gather more information.
A few days later the son contacted me saying that mum's solicitors had been in touch with them and that he and his mum, my sister, are the only executors. He also told me that once probate had been sorted then I could obtain a copy of the will.

Sorry for the long drawn out background, but my question is, do I contact the executor or mum's solicitor, or both, and advise them of the Caveat, [which I'm sure they know about now], and explain why I have requested it.
Is there any way that I can obtain a copy of the Will while the Caveat is in place.
Do I have a case to complain about mum's solicitor, who has still not made contact with me despite me writing 4 letters to him.
Like most on here, I have limited funds but realise I may have to seek legal advice at some point.
Thanks for reading.

[Peridot]

Re: Next move after a Caveat.

Hi Victor Meldrew,
I'm sorry to hear about your mother. A really difficult situation particularly when you weren't informed how ill your mother was. I assume that the funeral has taken place? Were any maters discussed then?

By applying a caveat this prevents a Grant being issued and therefore the Will being made public. As you are not an executor you are not necessarily entitled to a copy of the Will automatically. It will depend on the content of the Will, whether you can raise the issue of being a residuary beneficiary, but the executors are not under any duty to provide a copy to you unfortunately. Will readings are a misnomer. They are something from American movies and do not take place. Yes the executors will have met with the solicitors holding your mother's Will, if that is where it was stored, or they may have seen solicitors to see what they need to do as executors. There is however no obligation of solicitors or executors to communicate with any beneficiaries at this stage, although this will do little for family relations. In the usual course of events the immediate family may well know and discuss things but as I say there is no legal duty on the executors to do so.

From your comments it sounds like you may be suspicious of how this 'will' came into being? It is difficult when wills have been changed from what you believed them to contain and you have no knowledge of the change until the person passes away. Wills are private until the person dies and there is no obligation on anyone to disclose any information until a Grant has been obtained, although there are of course recommended courses of action such as informing residuary beneficiaries of their legacies, but no legal duty on the executor to do so at this stage I'm afraid.

I would suggest contacting your sister in the first instance and requesting a copy of the Will. Once you have this you will know when the 'new' will was created. Provided it has been prepared correctly following instruction by your mother and she had capacity to do so at the time it was created then there may be little that you can do to challenge the Will. If however you believe that for example your mother did not have capacity to change her Will at the time, then the validity may be open to question although it would be for you to prove this was the case.

It would be sensible to get some face to face advice on this, whether there is any option to make a claim and what such a claim would entail. Contesting probate can be an expensive and stressful process so you need to know what options you have, before going down this route.

If the solicitors have been instructed by your sister as executor they may not be able to discuss matters with you. It would be sensible to e-mail them and ask for a copy of your mother's Will as you believe you are a residuary beneficiary and also contact your sister for a copy in case it is not forthcoming. As I mention until a Grant is issued the Will is not a public document (after which anyone can obtain a copy). As there is currently a caveat in place the Grant can't be obtained.

[victor meldrew]

Re: Next move after a Caveat.

Hello Peridot.
Thank you for your reply and your kind words.
Yes, the funeral has taken place but the situation between me and my sister is tense, because of the pressure her son is putting on her, and I have not heard from her. I have written to her asking her to contact me but she has not done so.
I will take your advice and contact her again but in her capacity as an Executor, and via recorded post.
I know this may be a bit controversial but it will convey my seriousness to communicate.
My mother made a previous Will about 3 years ago. Would that Will have now been destroyed or could it still be in existence?

As an aside, I have worked in the health service for many years and have overseen many deaths. I was always taken aback by how nasty a small minority of relatives could be to each other when it came to inheritance.
As a family, we have never quarrelled so this 'atmosphere' comes as a complete surprise to me and is a little distressing.

My aim is to make sure everything is in order and has been done properly.
Just a thought, but if both executors decide that I should receive more than the 15% of the estate to which I am due, are they allowed to make a higher award.
Regards, Victor.

[Peridot]

Re: Next move after a Caveat.

Hi Victor Meldrew,
It is so difficult, having been in nursing myself then law I have seen all sides and can get very ugly at times, often out of the blue.
As far as any previous Will is concerned, provided this Will is valid it has revoked any Wills created before this one. The previous Will may well have been destroyed by Mum, which is also a form of revocation, when this new one was created.

As far as 'changing' the distribution of the Will is concerned, yes this is possible but it would be all the residuary beneficiaries, not the executors that would have to agree. A Deed of Variation could then be created to reflect the distribution. If the residuary beneficiaries can agree this then that would be a sensible route to take. I would suggest obtaining some face to face legal advice on this to ensure that the Deed is created and signed correctly if you are able to agree the division of the residue.

[victor meldrew]

Re: Next move after a Caveat.

Once again, thank you Peridot.
I was thinking if the older Will was still in existence then it may reveal past intentions, despite not being a legal document any longer.
As I said in my first post, my mother always stated that she would leave her estate to me and my sister in equal shares so I am a bit baffled, particularly with, and because of the behaviour and attitude now of my nephew.
Regards, Victor Meldrew.

[Peridot]

Re: Next move after a Caveat.

Hi again,
If there came a point the most recent Will were contested then yes a previous Will or more importantly the lawyers attendance notes when the most recent will was prepared and her reasons for changing what appear to have been her wishes for many years may well be relevant, but hopefully it won't be necessary to go that far and an agreement can be reached between you all.

[victor meldrew]

Hello. I thought I would add an update and seek further advice please. I did request a Caveat with regards to my mothers will which remained in place until the end of December 2017.
I wanted time to think about what to do with regard to my unpredictable nephew. In the end I decided it would be best to ride it all out and get it over with as quickly as possible. During the year I have written to my nephew twice asking him how things are progressing, there is also the sale of a property involved, but he has not answered me.
As previously mentioned, I have been given a sum of money from my mother's estate and this has been given 'Absolutely'. I am under the impression that 'Absolutely' means that I get this amount no matter what. The amount is about one seventh of the total estate worth. I have asked for this to be paid to me without me having to wait for the sale of the property. Am I correct in thinking that I can do this?
Secondly, can I insist that my nephew gives me an idea of how things are going with the probate issues. I recently met with his mother, my sister, who has become so disappointed in his behaviour over these issues that she has not only disowned him but removed him as a beneficiary from her will. She said that he is very much in debt and is sure that this is driving his greed.
Thirdly, the point about claiming interest after a year on monies not paid out, I assume, will be affected by the Caveat.
Finally I would like to ask about legal fees. If I contact a solicitor for advice and follow-on services I would expect to have to pay the fees myself. My nephew on the other hand would probably take the money from the estate in order to pay his fees. Why can I not do that too?
I hope this is not too long and drawn out and I look forward to your reply.
Kind regards,
Victor.

[victor meldrew]

I meant to ask about a further point. A bit morbid I know but while I'm waiting to receive my inheritance I could be removed from the equation by a bus or something. What will happen to it in this case?
Victor.

[Amethyst]

Peridot

[Amethyst]

I meant to ask about a further point. A bit morbid I know but while I'm waiting to receive my inheritance I could be removed from the equation by a bus or something. What will happen to it in this case?
Victor.

Lol, cheerful - it should become part of your estate and be passed as per your will - unless there is a clause in your mums will that says otherwise ( though they are normally 30 days succession ) I've tagged peridot to pop in on your previous post ( and to correct me if I'm wrong here )

[Peridot]

Hi Victor Meldrew
It seems things are moving along albeit slowly! Have you seen a copy of the Will yet?
As far as the legacy which you’ve calculated to be about 7% of the estate is concerned, whether you receive this before a house sale or not depends on the executors and also what there is in the estate. Usually distributions occur at the end of the administration, once all assets have been dealt with. Although if a specific legacy has been left, for example a set figure or item rather than a residual amount, then provided the estate has enough liquid assets this could be paid sooner.
if you are a residuary beneficiary then you should see the estate accounts once they have been completed, so toward the end of the administration once all assets and debts have been dealt with.
You need to see a copy of the Will to know what they are doing. Is the figure an offer rather than a legacy under the Will?

As as far as anything happening to you before you receive your legacy, if this is a legacy, it would go straight to your estate to eventually be distributed according g to your will or intestacy rules if you don’t have a will.

If this is an offer rather than a legacy legacy you need it in writing exactly what this is. Again if the worst happened this would then be a debt to your estate and pass as per your will/intestacy but your executoror administrator would need to be aware of the sum and that you have accepted it to be enforceable.

Hope that helps, here if any more queries.

[victor meldrew]

Thanks for the reply Peridot, and yes, very helpful. Thanks to Amethyst also.
Firstly, I should have mentioned that the reason I initiated the caveat was because my nephew was being what I thought was irrational to say the least. My sister had decided not to be further involved as the joint executor because she found it too stressful. She phoned me one evening and told me so. We had a long discussion about how poorly her son, my nephew, the co-executor was behaving, and how uncomfortable and ashamed she was of him.
We spoke for about an hour. 10 minutes later my sister phoned me again in a very distressed state asking why I had phoned her son after ending our phone conversation and told him everything that we has discussed. Her son had told her that this is what I had done. He waved a sheet of paper in front of her face and said he had it all written down. I hadn't done this of course. I asked my sister if her phone had an extension, and it had. As we were talking, my sister went to the extension to find her son listening in to our conversation. I heard her tell him off but then I heard him launch a viscous verbal attack on my sister and the language was awful. After this, I decided that I would question the fitness of my nephew in respect of holding the position of executor. He was also distributing valuable items from the estate at will.
Eventually, to save a long drawn out situation, and legal fees that I probably would not be able to afford I decided to withdraw the caveat.

Now, I have a copy of the Will and the estate has an estimated value of about £450.000. I have been left a specific cash sum, which is approximately one seventh of the total value.
After the stated cash figure the word 'Absolutely' is written, which is why I assumed that I would receive this amount no matter what.
It seems then that the waiting game continues. I'm not in a real hurry for this inheritance, I just want things to be finalised and out of the way.

Just on the point of claiming interest on the monies due, I assume that the year will run from when the caveat was removed and not from the time when my mother died.

Thank you.

[victor meldrew]

Bump.

[2222]

I think the interest rate for late payment of pecuniary legacies is only 0.1%, but I have not been able to find an official source for that. If so, the interest on a legacy of around £60k is only £5 a month, and not worth worrying about too much in view of all the other things going on. I'd be more worried the sole executor will abscond with the money!

It is worrying the way your nephew is behaving towards your sister. You could make it clear that she can always come to your house for refuge, if indeed that's the case.

[Peridot]

Apologies Victor Meldrew for not coming back to you.

So it sounds like this is this a pecuniary legacy (general legacy) leaving you a set sum and not leaving you a share of the residue of the estate once all debts and testamentary expenses are paid? Provided the estate is solvent and this is a general pecuniary legacy then once debts and testamentary expenses are paid then the legacy should be paid from the residue that is left before the residuary beneficiaries receive their amount (being their share of the residue once all other sums (debts, testamentary and general incl. pecuniary legacies) have been paid.

I assume there are sufficient funds in the estate to pay all the necessary debts etc and any other legacies that have been made in the Will?

The interest accrues from a year after the date of death. T

he rules state that interest on legacies is at the 'basic rate payable for the time being on funds in court or at such other rate as the court shall direct, beginning one year after the testator's death (

CPR Part 40

Practice Direction 40A para 15).

The rules do not make life easy when executors are administering the estate as there is now no fixed rate and nothing for them to follow. IMO the current rate of interest you receive for savings (rather than high risk investment, for example) would be an appropriate level, which as we all know is pretty negligible at this time.