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seanferguson13
seanferguson13, Solicitor
Category: Law
Satisfied Customers: 31
Experience:  3 year qualified solicitor with expertise in UK taxation.
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There is a rent due to me and my three siblings from a property

Resolved Question:

There is a rent due to me and my three siblings from a property which was owned by my deceased father. All four of us are Executors. Probate has been granted.
My brother told the three of us that the rent was £77,000 a year to be divided between the four of us. I have now had access to the account which he denied me for six months which clearly shows the rent is £95,000 a year. There is also a year's rent missing which went straight in to my brother's personal business account.
I am presuming this is illegal.
My sister's refuse to sign a mandate at this time so that we can get two signatures on any cheque written from the account because at the moment my brother is the only one with access to it and seems to be signing cheques without telling us and I have proof that some cheques have gone to his personal business account.
I cannot force my sisters to see sense so on the basis that you believe this to be illegal, what avenues are left open to me?
I would be grateful for any advice you can give me.
Regards
Sheila
Submitted: 3 years ago.
Category: Law
Expert:  seanferguson13 replied 3 years ago.
seanferguson13 :

Hi there

seanferguson13 :

I will endeavour to assist with your question.

seanferguson13 :

First of all I would make two important points:

seanferguson13 :

1. The information give is just that and is not intended to be legal advice (indeed due to Law Society rules it cannot be legal advice) so you should consult a solicitor if possible.

seanferguson13 :

2. As this is a family matter, you should use all avenues to try and resolve this outside litigation and the courts (and the police potentially)

seanferguson13 :

Starting with the criminal aspects there is obviously some potential for there to be criminal issues. The Theft Act states "A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it." Prima facie, it would appear that theft has occurred on your example.

seanferguson13 :

There also appears to be a breach of Section 2 of the Fraud Act 2006:


Fraud by false representation (Section 2)


The defendant:



  • made a false representation

  • dishonestly

  • knowing that the representation was or might be untrue or misleading

  • with intent to make a gain for himself or another, to cause loss to another or to expose another to risk of loss.


The offence is entirely focused on the conduct of the defendant.

seanferguson13 :

Those are the two most applicable based on what you have mentioned.

seanferguson13 :

As to the civil side of things there are a few potential avenues to explore in respect of retrieving the money but all will involve suing, i.e. litigation and taking your brother to court.

seanferguson13 :

First there is the 'tort' of fraud - meaning that the fraud in itself is an actionable civil offence that you can pursue at court.

seanferguson13 :

There is also a possibility of a claim for negligence given your joint and several liabilities as executors but it could be tricky to prove. You need to show that your brother owed you and your other siblings a duty of care, that he breached that duty, that the breach caused a loss that can be quantified.

seanferguson13 :

Both of these are 'torts' that can be pursued in the County Court or High Court

seanferguson13 :

And finally you can simply file a claim asking the court to use its discretion to direct your brother repay the monies under 'equity'. Equity is a set of natural law principles which overlay our legal system and allows the courts and judges to use their discretion to apply equitable outcomes to grievances. To ask the court for an equitable outcome, you must appraoch the court with "clean hands" i.e. have acted reasonably in all of your dealings with your brother over this incident.

seanferguson13 :

I believe that covers it, is there anything else you wish to know?

seanferguson13 :

Thanks

Customer:

Hi

Customer:

I think you have been extremely thorough. Thank you.

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