Will Excutor has not executed the will - what can be done. Is this a criminal offence

[hotdogs0611]

In the early nineties my father in law died, his will was executed by my wifes brother. The will stated that 75% of the cash asset (nearly 100k as i have recently found out) was to pass to my wife. And that 25% was to pass to the executor (her brother). My wife received £50k at the time.
This was 18-19 years ago however i was doing some genealogy type stuff and found via the probate office that my wifes father had left outstanding monies after tax and disbursements of just under £100K.

So in effect she should have been allocated £75K.

I'd like to know what our course of action should be taken and if this is a criminal offence (fraud?) . Then secondly how to recoup the missing £25k.

[DTCwordfan]

what were his liabilties at the time.....

[hotdogs0611]

nothing that i'm aware of the family home was all paid for.

[DTCwordfan]

liabilties cover more than that - account overdrafts, credit cards, funeral costs (though not several thou......). Who has a copy of the probate or I guess you could request to see the filing - solicitor probably.....

[hotdogs0611]

he was very correct in financial terms and did not buy stuff that could not be paid for. ie he saved then bought. the net value was 99K..

[woofgang]

it might be a criminal offence. Do you know what his debts and liabilities were?

[hotdogs0611]

we honestly don't think he would have had any

[DocHH]

An Executor has a duty to provide Beneficiaries with a Statement of Account of the Estate, assets minus liabilities, all fully detailed, including Executor Expenses. Did your wife receive one, if not then ask for one!

[factor-fiction]

Did you look at the value of the will when it first became a public record in the 1990s?

[hotdogs0611]

No, it never crossed our minds.
And we've never seen a Statement of Account of the Estate, assets minus liabilities, all fully detailed, including Executor Expenses.

[buildersmate]

When performing the duties of an executor he must “exercise such care and skill as reasonable in the circumstances”. This is set out in s1 Trustee Act 2000 - which pre-dates this situation.
A breach of duty by an executor is called devastavit - try Googling it - you might find out more. It splits into two types - misappropriation and maladministration. What you are referring to could be either.
Maladministration occurs when funds have been misapplied, - distributing assets to
persons not entitled, paying unjustified expenses and wasting the value of assets.
If devastavit is proven, the executor is personally liable for any loss. However,
there are a number of defences available, for example, an 'exoneration' clause in a will may restrict an executor's liability.

Under s22 of the Limitations Act, beneficiaries can bring an action within 12 years from the entitlement date, however this does not apply if fraud is involved.

[dzug2]

Proving fraud had taken place is going to be a problem after all this time. The executor only has to keep his records for 12 years so he could quite legitimately have destroyed them.

I fear you are too late to do anything practical.

[cassa333]

Wills and probate cause problems all the time.

My mil died last year and sil and her husband were executors. She paid herself £80k too much and the four children were short changed by £13500each.

After all this time you will have dificulty prooving anything. If there is so much animosity in the family that you feel agrieved now then you definately need to let it go.

All you can do is ask for a copy of the will from the public records office and then ask him to explain the accounts. If you don't get them or he says no then don't speak to him again. That will show him.

[jaydah]

As you have only just gained this evidence you have a right to chase them. Book half an hours 'free time' with solicitors till you find one that will take the case; it will be costly initially to you but if you win in Court all costs & losses will be met by the loser.

Assess the BILs assets to ascertain whether he could afford to meet your costs and awards. No point in winning a case if his assets couldn't meet your costs.