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Joshua, Lawyer
Category: Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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HelloI hope you can help me.

Customer Question

Hello I hope you can help me. My father recently passed away and his Mother (my late Grandmother) had left her property and some bonds and shares in trust for my brother and myself, with my father having a lifetime interest in the house so that he had a roof over his head. My Grandmother left the entire estate to myself and my brother, in a 60/40% ratio. When my father died I emailed the Trustees to advise them that I would be splitting the estate in a 50/50 ratio to even up the score for my brother. There was, as far as I can recall, no legally-binding document or letter signed by either of us. Just the email. Unfortunately, since then my brother and I have fallen out and he has been completely unappreciative of my gesture. He has even admitted that if the tables were turned, he would not have done the same! He has failed to send a £500 donation to the charity which our executors set up even though we agreed that we would both donate the same sum and I have done so a while ago. We have so far had £210,000 each from the sale of the property and some bonds. There is approximately £22,000 left which is being held in a high-interest account in my brother's name pending the HMRC acceptance of the house valuation. I am understandably concerned that my brother may decide to hang onto these funds so the Trustees/Executors are looking into transferring these funds to an account in their care. My real concerns are the following: 1. do I have any legal right to demand back my extra 10% - he is refusing to do this but as it was a gift from me, can I change the terms under which I gave it to him|? 2. failing that, as I have reluctantly accepted I may have to, please can you confirm if I now have any rights to change my mind and ask for the remaining £22k to be split as per the terms of my Grandmother's Last Will and Testament - ie in a 60/40 ratio? I have really tried to resolve things between my brother and myself and have asked if I can have the remaining £22K for myself in lieu of the fact that I have given away £40,000 already but my brother has refused point blank and told me that he is entitled to 50% and is even asking me for £150 which he believes I owe him! Many thanks and kind regards XXXXX XXXXX(Mrs.) XXXXX XXX XXX

Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Joshua :

How has your brother come to be in possession of the £22K please if he is not an executor? Who are the executors and trustees of the estate?

JACUSTOMER-qumkbugl- :

Hi Joshua

JACUSTOMER-qumkbugl- :

Hi Joshua,

JACUSTOMER-qumkbugl- :

The executors/trustees are distant cousins who cannot offer impartial advice.

JACUSTOMER-qumkbugl- :

The £22k has been returned to their safekeeping for now - my brother was only looking after it a he felt he could get a higher interest account but that is really not my main issue.

JACUSTOMER-qumkbugl- :

Am I entitled to go back on my original email (not a legally-binding document?) in which I overturned the terms of my Grandmother's will and changed the 60/40 ratio to a 50/50 one please?

Joshua :

Hi - sorry we seem to have got disconnected for a few days unless there is a bug. Would you like to continue with this?

JACUSTOMER-qumkbugl- : Yes please
Joshua :

Thanks. Would you kindly bear with me while I rereview your original question and subsequent posts?

JACUSTOMER-qumkbugl- : Sure, when do you think you'll have an answer?
Joshua :

Can you tell me exactly what you said in the email to the trustees and whether you have signed any formal deed of gift to date? I thin you say you have not however from what you say at least some of the 10% additional sum has already been paid to your brother?

Joshua :

What does 10% of the total trust equate to roughly?

JACUSTOMER-qumkbugl- : I just sent an email and it equates to approx £40k
JACUSTOMER-qumkbugl- : And yes it has been paid but we have a further £22k which has been held up which he expects to get 50% of
Joshua :

from what you say, you have not signed any formal deed of gift? can your brother demonstrate that he has anyway suffered detriment by reliance on your original offer of a gift?

JACUSTOMER-qumkbugl- : No
Joshua :

thank you. English law has sought to establish when the gift is a gift over the years. generally, there is no presumption of the gift being made in English law and so for example money given by one brother to another brother would not result in a presumption of a gift but rather would result in a presumption of a loan unless evidence of a gift exists, such as a deed of gift or written evidence stating that the money was a gift and so on. Certain relationships such as for example father and daughter will result in a presumption of the gift but that is not relevant here as no presumption arises between brothers

JACUSTOMER-qumkbugl- : So what can I do, can I sue him for the10% and expect to get it back?
Joshua :

here, from what you say the money under the trust must think be divided into two parts: that's which your brother has already received, and that which he hasn't. from what you say, there is written evidence of your intention to give your brother gift. your brother will therefore have excellent evidence to demonstrate that any money has already received from the trust operates as a gift under that intention and I cannot see any clear basis on which you could reverse that payment of monies because a gift cannot be taken back unilaterally by definition. however, the position is not so straightforward with regards to monies that have not yet been paid to him as in the absence of a deed of gift, the payment of money operates as the primary evidence of the gift

JACUSTOMER-qumkbugl- : So, just to be clear- I can't get back the money that has been split but I can keep whatever's left?
Joshua :

I therefore consider that on the basis that part of the money promised has not yet been paid to your brother, subject as follows, you can raise an argument that this money has not yet been gifted and prior to making a gift, the giftor is perfectly at liberty to change his mind about making a gift.

Joshua :

the caveat to the above is that where the recipient can demonstrate that he has relied to his detriment on a promise made by another, he can rely in equity on that promise and never words force the person making the promise to abide by the promise in law. However, from what you say, your brother has not suffered detriment by virtue of your declaration of intent to make a gift. Rather most likely to the contrary. accordingly, this is unlikely to be an action that is available to him as a defence

Joshua :

accordingly, you may wish to consider contacting the trustees advising them that you have decided not to pay your brother any further monies you had originally intended and that you wish to seek your full entitlement under the trust except for such monies which have already been paid in accordance with your original instructions as I cannot see how you can reclaim lease lawfully at this stage. On the basis that no deed of gift has been signed, I cannot see that the trustees have a basis to go against your new instructions as under the trust you have an absolute entitlement to the money is concerned

JACUSTOMER-qumkbugl- : Ok, thank you so he would have to get the money from the trustee and I am perfectly at liberty to tell the trustee that I am keeping the rest for myself as part of the actual will?
Joshua :

is there anything above I can clarify for you?

JACUSTOMER-qumkbugl- : From the original will to be exact
Joshua :

based on what you see above, unless the trustees consider that they already have irrevocable instructions from you, which I cannot see that they have, and it would be very brave of them as trustees to claim that they did as they can be personally liable to you if they pay out monies without your authority, original instructions as long as you do so prior to the monies being paid to your brother.

JACUSTOMER-qumkbugl- : I will pass this onto my wife and I am sure that she will get back to you if there is anything else she needs. Thank you very much for your advice
Joshua :

A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though.

JACUSTOMER-qumkbugl- : Sorry to ask but can I keep all the £22k or only my 50% share of it?