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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10623
Experience:  Barrister 17 years experience
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My brothers are possibly in the process of court proceedings

Resolved Question:

My brothers are possibly in the process of court proceedings over my late fathers will' My sisters and myself have been left a small share of the estate which is mainly his cash When this goes to court can the future expenses be taken out of our money. so far my brothers have paid their own expenses but have a vision of the Judge taking our money to pay for there war. My sisters and I have not become involved but worried our inheritance will disappear in there war. should we cover our "backs"
Submitted: 3 years ago.
Category: Law
Expert:  Buachaill replied 3 years ago.

Buachaill :

1. You are right to be worried. The sad fact is that when parties go to war over a will, very often, the court will make an order whereby the legal expenses of the parties will come out of the will. Accordingly, it is absolutely imperative that you seek legal representation in the case when the issue of legal costs arise so that you may argue that each party bears their own costs and costs are not taken out of the estate to the prejudice of yourself and your sisters. There is no need to attend for the full hearing, but merely seek attendance for a barrister or solicitor on the issue of costs. This is particularly acute when your legacy is small and not a specific legacy, as the costs generally come out of the residue of the estate ie the money remaining after the specific gifts have been given out.

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Customer: replied 3 years ago.

What is meant by specific gifts?. My father has left small cash amounts to his 8 grandchildren and specified that the rest of his cash is for myself and my two sisters. my brothers inherit a caravan site large farm house and orchard pour 100 acres of farming land which we do not dispute. how can it be that they can waste our inheritance on fighting each other?

Expert:  Buachaill replied 3 years ago.
2. "specific gifts" are exact amounts in cash, such as those left to the 8 grandchildren. The caravan site, farm house and 100 acres are also specific gifts. Your and your two sisters gift of the rest of the cash is the remainder of an item and only gets paid once the specific gifts have been paid. As court costs are normally paid out of the residue, which especially comprises the cash remaining, your gifts are the first to be used to pay the legal fees incurred. Not the specific gifts I have outlined. I am afraid this is just the way the law works in this area. Accordingly, you need to oppose any order for costs being paid by the estate.
Customer: replied 3 years ago.

ok thanks for info. what are the chances of our success in stopping expenses being taken out of our inheritance if we appoint someone to act for us to state our case?. It seems one brothers solicitor suggests the judge may make the second brother pay because of his unreasonable behaviour?

Expert:  Buachaill replied 3 years ago.
3. All litigation is hazardous. So whilst you are more likely than not going to succeed in preventing costs being taken out of the estate, there is absolutely no guarantee you will succeed. This is quite simply because costs are something in the judge's absolute discretion and reflect what view he takes of the parties as well as the litigation. So I can only tell you to take your chances!
Customer: replied 3 years ago.

It has been suggested that because the money and the cottage we have been left between us is not part of any dispute we may be able to ask for the sisters share to be released now before any other proceedings. Is this correct?

Expert:  Buachaill replied 3 years ago.
4. YOu can ask for anything, but that does not mean your request will be granted. If I was advising the executor I would not for the life of me release any share when litigation is in the offing. So there is little chance of that happening!
Customer: replied 3 years ago.

It has taken a long time but things are progressing. we are informed that the court application has been made whereas one brother is suing the other. we are also informed that both brothers have had to pay their costs in advance . it seems they still refuse to pay the sisters and are keeping our money until litigation is completed. why would this be so when both brothers state they have and will bear all costs. will there definitely be a case or can the judge decide the rights and wrongs? Mediation has been ruled out because not only do the brothers not speak to each other but neither will concede. There is also a case building by both brothers solicitors against the will maker for negligence as they have admitted in writing via a letter to myself that there are various interpretations of the will.?. any thoughts?

Expert:  Buachaill replied 3 years ago.
5. Firstly, just because there are various interpretations of a will, this does not mean that the solicitors who assisted in preparing the will were negligent. Negligence requires something more. Namely, a carelessness or professional service which falls short of the required standard. Secondly, a judge will decide the rights and wrongs including the costs issue. Just because each of your brothers are paying their own costs does not meant that the judge will not make an order for costs out of the estate. That is why your money is being kept until the litigation is over!