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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25427
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi My partner passed away last September and his will named

Resolved Question:

Hi
My partner passed away last September and his will named three executors myself (His Partner of 17years) His Sister and his Daughter. The will states that my children and his children receive 50-50 of the residue of his will and his children would have all his personal items.
After his death his daughter (after finding the key,) removed over 23K from his safe without the knowledge of the other executors and opened a new bank account with this money, as she now lives in Australia and it was easier to transfer the money over there (She asked him for the code or key to his safe a few days before his death) but he refused.
I informed the solicitor of this and he requested to see her bank statement. She said she only removed 11k and said it was easier for herself to send an Australian bank statement of how much she transferred and the solicitor agreed to this.
I disagreed with this as my partner told me a few days before his death that there was in fact over 23k in that safe.
The solicitor said it was not in the interest of the beneficiaries to pursue this, due to the cost and he would be going ahead with finalising and dealing with my partners will.

I told him that I would not agree to this as all three executors would have to sign and that I was not prepared to do this.
The solicitor said that was not the case and he would be going head with completion.
He said that if I felt a fraud has taken place I should go to the police, or, my children could take her to the small claims court as we were only talking 12k, but also stated it would be unlikely that we would ever receive the money if we won the case.
Could you please advise me on how, as one of the three executors I stand, and what if anything, my children can do about this as I feel this is very wrong.
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask if you believe you could produce any evidence that she took the additional money please - e.g. do you believe that she deposited the whole amount into a bank account?

Customer: Yes I can, but I would need to get the bank statement she deposited the money into. I was there when she put the first amount in and she went again when I wasn't with her.
Customer: iI was not aware of the contents of my partners will at this stage so I assumed his children had been soul beneficiaries
Joshua :

Thank you. Is the bank in question a UK bank account?

Customer: Yes
Joshua :

Thank you. There are two approaches you can consider. The first is a complaint under criminal law. There are grounds to deem this to be theft however the police may well take the view that it is a civil matter in the circumstances and refuse to proceed. It is a finely balanced question of judgement as to whether this is is criminal but it is a potential approach. If the police agree to investigate they have powers to obtain a copy of the bank account statement and then if they consider they have sufficient evidence seek a prosecution though this would be hampered by the individual living in Australia.

Joshua :

The alternative approach which can be undertaking irrespective of whether you pursue the matter criminally is to consider issuing proceedings against the individual. You can as executor seek an order for disclosure in respect of the bank statement under part 31 CPR and then following the same consider issuing proceedings against her. Again this is slightly less straightforward than it need ordinarily be because you will need to seek permission to serve abroad. However as the amount is more than £10K there is scope for recovering some legal costs if you are successful and accordingly you may consider instructing a litigation solicitor to assist you with aspects of the claim.

Customer: Could I as an executor delay, by not signing the paper work until she produces the bank statement. I was under the impression that the three executors had to be in full agreement
Joshua :

If you are successful you will obtain judgement against her which can then be enforced in Australia and reciprocal enforcement provisions between the UK and AUS.

Joshua :

Executors can act jointly and severally. A solicitor is unlikely to proceed to distribute however without all of the executors instructions as he has an equal duty to all three of you.

Customer: sorry if I'm not understanding this. You say. if I'm succeful in obtaining judgement. Where would I need to go to do this????
Joshua :

You can seek an application for disclosure using form N244. If this reveals evidence suggesting you have a claim you can issue proceedings using form N1.

Joshua :

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=484

Joshua :

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=340

Joshua :

In order to serve on her abroad you will also need to complete form N510
http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=2235

Joshua :

These forms are completed and filed with the county court for issue.

Customer: many many thanks. I'm very pleased with your prompt reply. I feel I have what I need. Thank you
Joshua :

If I can assist any further as the situation develops please do no hesitate to let me know.

Customer: I will, and again. MANY THANKS.
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 though please reply back to me though.

Joshua and other Law Specialists are ready to help you
Customer: replied 3 years ago.
Hi Joshua
I have reply'd to your request earlier and said that I was very pleased with your answer to my question.
I have since spoken to the solicitor and it seems there will soon be closure to this problem.
Again many thanks for your speedy reply and hopefully there will be no further questions if everything goes to plan with your advise.
Expert:  Joshua replied 3 years ago.
Many thanks for letting me know.

Kind regards
Joshua and other Law Specialists are ready to help you

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