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Possible conflict of Interest
Barmaid !. I will address this question to yourself, as it is related to questions posed by myself, in Dec. 08 and Jan
09 re the estate of my wife's late aunt.
Her Solicitor who is also the solicitor for the next of kin, states that she died intestate, although that is being disputed, based on information available, and a caevat has been lodged, and of which the solicitor and next of kin are now aware.
There are now two estates involved, as my wifes aunt (called A) died on 10th December 2008, and my wife's father(called B), a brother of A, died on 9th. January
2009.
B has left a will with a partner in the same firm of Solicitors, with myself and the partner being named as executors, and the estate is being administrated in accordance with the will. I now have discovered that
the Solicitor acting on behalf A's next of kin has
now applied a sum of money to B's estate, and which
is included in the inland revenue form, which I had been
asked to sign by my coexecutor, the partner in the same firm of solicitors, and who is fully acquainted with both estates.
I refused to sign this document on the grounds that it
could jeopardize the ongoing dispute.
My question is this. How can the Solicitor for A's next of kin proceed in this way to administer the estate, when
they have not been able to get letters of authority to administer.(the figure used is only notional).?
Surely this will mean that B's estate cannot be wound
up because there will be no funds to pay the amount
applied from A's estate.
Is there a conflict of interest here, or is it a clever trick
to get the caveat on A's estate lifted.?.
I have tried to explain this as best I can, and would
appreciate it very much if you could offer some help, as my wife is greatly disturbed by the whole thing.
Thanking you in anticipation.
09 re the estate of my wife's late aunt.
Her Solicitor who is also the solicitor for the next of kin, states that she died intestate, although that is being disputed, based on information available, and a caevat has been lodged, and of which the solicitor and next of kin are now aware.
There are now two estates involved, as my wifes aunt (called A) died on 10th December 2008, and my wife's father(called B), a brother of A, died on 9th. January
2009.
B has left a will with a partner in the same firm of Solicitors, with myself and the partner being named as executors, and the estate is being administrated in accordance with the will. I now have discovered that
the Solicitor acting on behalf A's next of kin has
now applied a sum of money to B's estate, and which
is included in the inland revenue form, which I had been
asked to sign by my coexecutor, the partner in the same firm of solicitors, and who is fully acquainted with both estates.
I refused to sign this document on the grounds that it
could jeopardize the ongoing dispute.
My question is this. How can the Solicitor for A's next of kin proceed in this way to administer the estate, when
they have not been able to get letters of authority to administer.(the figure used is only notional).?
Surely this will mean that B's estate cannot be wound
up because there will be no funds to pay the amount
applied from A's estate.
Is there a conflict of interest here, or is it a clever trick
to get the caveat on A's estate lifted.?.
I have tried to explain this as best I can, and would
appreciate it very much if you could offer some help, as my wife is greatly disturbed by the whole thing.
Thanking you in anticipation.
Answers
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The solicitors for A's next of kin are not administering the estate - they will not be able to do this until probate has been granted.
What they are doing is preparing to administer the estate - they have to do this in order to get probate. Clearly there is some risk of nugatory work in this, given the dispute/caveat, but whatever the outcome the preparatory work needs to be done.
And yes, it will mean that B's estate cannot be wound up until A's estate is settled - but that's no reason to sit and do nothing.
And the caveat on A's estate will have to be lifted - either by production of a valid will or acceptance that there isn't one.
What they are doing is preparing to administer the estate - they have to do this in order to get probate. Clearly there is some risk of nugatory work in this, given the dispute/caveat, but whatever the outcome the preparatory work needs to be done.
And yes, it will mean that B's estate cannot be wound up until A's estate is settled - but that's no reason to sit and do nothing.
And the caveat on A's estate will have to be lifted - either by production of a valid will or acceptance that there isn't one.
Perhaps I could expand on my answer in case I've misunderstood what you are asking.
Winding up an estate is in three stages.
The first is to identify and value the assets - which is what appears to be going on to me. To do this you do not need Probate or Letters of Administration - in fact you can't get them until you have done it. This action is going to have to be done whether intestacy is proved or not. The only 'risk' is that the sister rather than the estate will have to pay the solicitor's fees if a will turns up and a different firm is appointed and has to redo the work.
You then apply to the Probate Court and the question of the caveat will have to be sorted out. Either the solicitors convince the court that all steps to find a will have proved negative (asked banks, other local solicitors, more distant solicitors if the deceased had a relationship with them for other reasons, consulted registers of wills, ransacked the house, etc,) or those who claim there is a will will have to produce their evidence to that effect - and ultimately locate it.
Not until this has been done will it be possible to gather in the assets (stage 2) and then distribute them (stage 3).
Not sure what you mean by 'allocated' - I assume it's a piece of accounting that says IF we get this asset then THAT is where it will go. We will value the estate on the assumption we will get it. Doesn't seem unreasonable to me.
Winding up an estate is in three stages.
The first is to identify and value the assets - which is what appears to be going on to me. To do this you do not need Probate or Letters of Administration - in fact you can't get them until you have done it. This action is going to have to be done whether intestacy is proved or not. The only 'risk' is that the sister rather than the estate will have to pay the solicitor's fees if a will turns up and a different firm is appointed and has to redo the work.
You then apply to the Probate Court and the question of the caveat will have to be sorted out. Either the solicitors convince the court that all steps to find a will have proved negative (asked banks, other local solicitors, more distant solicitors if the deceased had a relationship with them for other reasons, consulted registers of wills, ransacked the house, etc,) or those who claim there is a will will have to produce their evidence to that effect - and ultimately locate it.
Not until this has been done will it be possible to gather in the assets (stage 2) and then distribute them (stage 3).
Not sure what you mean by 'allocated' - I assume it's a piece of accounting that says IF we get this asset then THAT is where it will go. We will value the estate on the assumption we will get it. Doesn't seem unreasonable to me.
dzug ! Thanks for trying to help me further.
Sorry I cant see wher I have used the word "allocated".
However I would just like to mention my understanding of the difference between probate and letters of administration.
Administrators have no legal authority to act until the grant of
letters of administration are issued to them, whereas executors may act immediately on the death.
In this case the next of kin had made application for letters of administration, which were rejected, because my wife has placed a caveat thereon.
In order to clarify the matter a bit more, as to why the caveat has been applied, and the question of a possible will, I shall proceed.
"A" aged 90 made a will in January 2007, in which she had bequeathed the bulk of her estate, ie. her house with all its contents, and grounds to my wife, who was her niece.
But two sisters of the deceased, who were next of kin, advised "A" that she should cancel the will, and that everybody would get their share. "A" told us about this, but she failed to understand that my wife would get nothing, because her father "B" was alive at that time.
(I would just mention here, that mywife and myself did quite a lot of unpaid work for "A", cutting hedges, grass,
keeping her flower beds, and extensive grounds).
We were never told that the will was actually cancelled, until some few days before before her death, a church friend of "A"s, who had been her executor, came to see my wife, and informed her that "A" wanted to make a new will,
again leaving her house and garden to my wife.
Incidentially "A" used to refer to my wife as being "her favourite niece, or the daughter that she never had".
My wife went to see her and she told her that she wanted her to have her house and grounds, and that the executor was making arrangements with her Solicitor, to have a new will drawn up.
(To be continued in next posting)
Sorry I cant see wher I have used the word "allocated".
However I would just like to mention my understanding of the difference between probate and letters of administration.
Administrators have no legal authority to act until the grant of
letters of administration are issued to them, whereas executors may act immediately on the death.
In this case the next of kin had made application for letters of administration, which were rejected, because my wife has placed a caveat thereon.
In order to clarify the matter a bit more, as to why the caveat has been applied, and the question of a possible will, I shall proceed.
"A" aged 90 made a will in January 2007, in which she had bequeathed the bulk of her estate, ie. her house with all its contents, and grounds to my wife, who was her niece.
But two sisters of the deceased, who were next of kin, advised "A" that she should cancel the will, and that everybody would get their share. "A" told us about this, but she failed to understand that my wife would get nothing, because her father "B" was alive at that time.
(I would just mention here, that mywife and myself did quite a lot of unpaid work for "A", cutting hedges, grass,
keeping her flower beds, and extensive grounds).
We were never told that the will was actually cancelled, until some few days before before her death, a church friend of "A"s, who had been her executor, came to see my wife, and informed her that "A" wanted to make a new will,
again leaving her house and garden to my wife.
Incidentially "A" used to refer to my wife as being "her favourite niece, or the daughter that she never had".
My wife went to see her and she told her that she wanted her to have her house and grounds, and that the executor was making arrangements with her Solicitor, to have a new will drawn up.
(To be continued in next posting)
Continuation to dzug.
"A" was supposed to call in to the solicitors office the following day, but was unable to keep the appointment, as she was weak and had partly lost her voice.
The following morning my wife and the executor called with "A" who lived alone, and once again she reiterated, that she wanted to make sure my wife got her house and garden.
The executor said that the Solicitor cpuld be out in 15 minutes
if he was phoned. So "A" asked the executor to phone the Solicitor and ask him to come out to sort out the will.
My wife was present when the executor spoke with the Solicitor, and heard the conversation clearly.
The Solicitor stated that he could not come out now because he had an appointment in the afternoon, but that he would come out to "A"s home the following morning at 11am, and bring two witnesses with him.
Before my wife left , her last words to my wife were. "I am
happy now that the will is being sorted out, and that you will have the house".
We believe that "A" who had a heart condition, seemed to know that death could be near.
Sadly she was found dead on the floor of her home the following morning, 10th December 2008 at 8.20am by her carer. Hence the appointment did not take place, and the will was not executed.
We have certain information which indicates that the will made in January 2007 was not legally cancelled.
But "A"s Solicitor who is also solicitor for the next of kin is not forthcoming with answers to inquiries made, regarding
the time of the appointment to cancel, the name of the person seen by "A", and copies of attendance notes.
We understand that when the Solicitor in question received a letter, making inquiries about date of cancellation etc., that there was great consternation in
their office, as they could not find any member of staff, who could verify that they saw "A" in the office regarding the cancellation.
"A" was supposed to call in to the solicitors office the following day, but was unable to keep the appointment, as she was weak and had partly lost her voice.
The following morning my wife and the executor called with "A" who lived alone, and once again she reiterated, that she wanted to make sure my wife got her house and garden.
The executor said that the Solicitor cpuld be out in 15 minutes
if he was phoned. So "A" asked the executor to phone the Solicitor and ask him to come out to sort out the will.
My wife was present when the executor spoke with the Solicitor, and heard the conversation clearly.
The Solicitor stated that he could not come out now because he had an appointment in the afternoon, but that he would come out to "A"s home the following morning at 11am, and bring two witnesses with him.
Before my wife left , her last words to my wife were. "I am
happy now that the will is being sorted out, and that you will have the house".
We believe that "A" who had a heart condition, seemed to know that death could be near.
Sadly she was found dead on the floor of her home the following morning, 10th December 2008 at 8.20am by her carer. Hence the appointment did not take place, and the will was not executed.
We have certain information which indicates that the will made in January 2007 was not legally cancelled.
But "A"s Solicitor who is also solicitor for the next of kin is not forthcoming with answers to inquiries made, regarding
the time of the appointment to cancel, the name of the person seen by "A", and copies of attendance notes.
We understand that when the Solicitor in question received a letter, making inquiries about date of cancellation etc., that there was great consternation in
their office, as they could not find any member of staff, who could verify that they saw "A" in the office regarding the cancellation.
Continuation to dzug .
As a matter of fact we were informed by a person who worked in that Solicitors office in January 2007, when the will was made, and was still there in October 2007 when the will was supposed to be cancelled, but had since left, whether or not
"A" was seen by them. But this person referred to could not help.
One can understand why the Solicitor has a problem in supplying answers, and copy attendance notes.
Can you suggest any way of persuading this solicitor to cooperate. It has not been put to him that we suspect the will is not legally cancelled, but perhaps he suspects same.
Sorry for bothering with such a lot of detail, but I felt it was better to try and give you the whole picture
May I make it clear, that my wife's late aunt's intentions
regarding the proposed will, were well known to my wife, the executor, and the Solicitor himself.
The whole business has left my wife quite distraught, and
any positive help would be appreciated.
End of Post
As a matter of fact we were informed by a person who worked in that Solicitors office in January 2007, when the will was made, and was still there in October 2007 when the will was supposed to be cancelled, but had since left, whether or not
"A" was seen by them. But this person referred to could not help.
One can understand why the Solicitor has a problem in supplying answers, and copy attendance notes.
Can you suggest any way of persuading this solicitor to cooperate. It has not been put to him that we suspect the will is not legally cancelled, but perhaps he suspects same.
Sorry for bothering with such a lot of detail, but I felt it was better to try and give you the whole picture
May I make it clear, that my wife's late aunt's intentions
regarding the proposed will, were well known to my wife, the executor, and the Solicitor himself.
The whole business has left my wife quite distraught, and
any positive help would be appreciated.
End of Post
Too complicated for me to give a full answer, but:
I'd forget the administering the estate aspect - they cannot administer the estate (in the sense of collecting in and actually distributing assets) until they have the grant. They can and indeed have to do all sorts of preparatory work or they can't get a grant - no one ever could.
Sorry - for allocated read assigned - I'd misremembered your wording. Again it's paperwork, preparatory, not substantive.
What does matter is what actually happened about the will, not what was intended to happen. What the proposed new will was to have said is totally academic - it never existed.
What matters is whether the old one was destroyed, and if so was it done legally. Did the maker of it destroy it herself - or did the solicitor destroy it, at her instruction and in her presence? If so it was validly cancelled.
Did the solicitor destroy it himself, anticipating the new will? If so it's still valid - assuming it can be reconstructed (?from a copy) and you can persuade the solicitor to admit to it. It's sounding as though he may be trying to cover up - though not necessarily. He may regard the caveat as a just a malicious nuisance and won't take it seriously without real evidence from you, not just assertion.
You need your own solicitor on the job to have much chance of success - which will be expensive, win or lose.
I'm assuming the beneficiaries of the intestacy are unwilling to agree to a Deed of Variation?
I'd forget the administering the estate aspect - they cannot administer the estate (in the sense of collecting in and actually distributing assets) until they have the grant. They can and indeed have to do all sorts of preparatory work or they can't get a grant - no one ever could.
Sorry - for allocated read assigned - I'd misremembered your wording. Again it's paperwork, preparatory, not substantive.
What does matter is what actually happened about the will, not what was intended to happen. What the proposed new will was to have said is totally academic - it never existed.
What matters is whether the old one was destroyed, and if so was it done legally. Did the maker of it destroy it herself - or did the solicitor destroy it, at her instruction and in her presence? If so it was validly cancelled.
Did the solicitor destroy it himself, anticipating the new will? If so it's still valid - assuming it can be reconstructed (?from a copy) and you can persuade the solicitor to admit to it. It's sounding as though he may be trying to cover up - though not necessarily. He may regard the caveat as a just a malicious nuisance and won't take it seriously without real evidence from you, not just assertion.
You need your own solicitor on the job to have much chance of success - which will be expensive, win or lose.
I'm assuming the beneficiaries of the intestacy are unwilling to agree to a Deed of Variation?
Dzug ! Thank you so much for taking the trouble to read such a long complicated case. You would seem to have understood it very well. With regards to the will in question, the executor insists that the testatrix who was 90 years old,
told him that she phoned the solicitor and cancelled the will.
when it was put to the solicitor he insisted that she came into their office and it was cancelled legally, yet there are no attendance notes. Nothing to say that she was advised of the consequenses of cancelling the will.
The solicitor now says that she came in unannounced, did no see a solicitor, only the clerk at reception, who got the will out and it was cancelled.
I firmly believe that it was not legally revoked.
Thank you once again Dzug.
I shall be deleting these questions in a few days time.
told him that she phoned the solicitor and cancelled the will.
when it was put to the solicitor he insisted that she came into their office and it was cancelled legally, yet there are no attendance notes. Nothing to say that she was advised of the consequenses of cancelling the will.
The solicitor now says that she came in unannounced, did no see a solicitor, only the clerk at reception, who got the will out and it was cancelled.
I firmly believe that it was not legally revoked.
Thank you once again Dzug.
I shall be deleting these questions in a few days time.
Hmm I fear you are on a loser. If she visited the office and told a clerk to tear it up, and watched him/her do it, that constitutes legal revocation. It's unwise that it wasn't recorded, but recording is not AFAIK a legal requirement.
You may have your suspicions but I really doubt if you can do anything about them if the solicitor (and clerk, if identifiable) say otherwise.
You may have your suspicions but I really doubt if you can do anything about them if the solicitor (and clerk, if identifiable) say otherwise.
dzug! I would like to just add, that the person to whom I
referred in my long question, as having been an employee
of the said solicitor, during the time of the making of the will, and also at the time when it was supposed to have been revoked, and with whom contact was made by the solicitor, to find out if they might have seen the testatrix and taken instructions to revoke the will (which they did not).
has said that there are some very serious issues in that Solicitors office regarding this matter.
Surely something like that is worth pursuing.
We have engaged a Solicitor.
Just one last comment please.
referred in my long question, as having been an employee
of the said solicitor, during the time of the making of the will, and also at the time when it was supposed to have been revoked, and with whom contact was made by the solicitor, to find out if they might have seen the testatrix and taken instructions to revoke the will (which they did not).
has said that there are some very serious issues in that Solicitors office regarding this matter.
Surely something like that is worth pursuing.
We have engaged a Solicitor.
Just one last comment please.
Well it may be worth pursuing. You/your solicitor/the deceased's solicitor will have to persuade the Probate Court of the 'truth', whatever that may be.
It seems accepted that the deceased intended to revoke her will and make another. It is accepted that she did not make another, so the question is did she actually and legally revoke the original will? In other words was it:
a destroyed in the correct manner? Then it was revoked, regardless of whether records were kept or not.
b Was it destroyed in an incorrect manner? Then it probably stands.
c Or does it still exist? Then it definitely stands
The difficulty lies in deciding whether a or b applies in what appears to be the absence of any hard evidence either way. Quite what happens if it's genuinely impossible to tell I've no idea.
It seems accepted that the deceased intended to revoke her will and make another. It is accepted that she did not make another, so the question is did she actually and legally revoke the original will? In other words was it:
a destroyed in the correct manner? Then it was revoked, regardless of whether records were kept or not.
b Was it destroyed in an incorrect manner? Then it probably stands.
c Or does it still exist? Then it definitely stands
The difficulty lies in deciding whether a or b applies in what appears to be the absence of any hard evidence either way. Quite what happens if it's genuinely impossible to tell I've no idea.
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