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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33305
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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Is it legally permissible for one party to break an agreement

Customer Question

Is it legally permissible for one party to break an agreement made by email to pay a considerable amount of money to another in one of a number of circumstances which, though detailed in the agreement, occurs much sooner than expected?
Submitted: 1 year ago.
Category: Law
Expert:  Jo C. replied 1 year ago.
Hi.
Thank you for your question. My name is ***** ***** I will try to help with this.
-Could you explain your situation a little more?
Customer: replied 1 year ago.

Incidentally, I forgot I had used this website a year or so ago on a technical matter and cannot now log in. I have paid £38 by MasterCard.

My problem is this.

In 1996 I obtained a divorce from the wife I married in 1960. A Consent Order was granted confirming the financial settlement: equal share of assets, a monthly payment by me until her death (expected to be after mine), and after my death compensation (for her forfeiture on divorce of a civil service widow's pension) to be paid from subletting or the sale of my property. I remarried in 1996 and I now live with my second wife in a property owned by both of us but paid for from her earnings. I sold my previous property in 2012 and, by what I regarded as an informal arrangement with my son (born in 1962 by first wife), the proceeds were put into a joint bank account in the names of my son and my present wife (intended executors of my Will) to provide the compensation to my former wife after my death and until hers. The money would then be shared between my son and present wife as inheritances. He also inserted in the agreement at the time, which I gave insignificant attention to, a clause that in the event of my former wife's prior death, the money, instead of being returned to me would be shared between my son and present wife. My former wife unexpectedly died on September 2014 and my son withdrew his money (£50K-odd) immediately. He will not return it, claiming that I had no legal right to demand it back.

How do I stand please?

Customer: replied 1 year ago.

Incidentally, I forgot I had used this website a year or so ago on a technical matter and cannot now log in. I have paid £38 by MasterCard.

My problem is this.

In 1996 I obtained a divorce from the wife I married in 1960. A Consent Order was granted confirming the financial settlement: equal share of assets, a monthly payment by me until her death (expected to be after mine), and after my death compensation (for her forfeiture on divorce of a civil service widow's pension) to be paid from subletting or the sale of my property. I remarried in 1996 and I now live with my second wife in a property owned by both of us but paid for from her earnings. I sold my previous property in 2012 and, by what I regarded as an informal arrangement with my son (born in 1962 by first wife), the proceeds were put into a joint bank account in the names of my son and my present wife (intended executors of my Will) to provide the compensation to my former wife after my death and until hers. The money would then be shared between my son and present wife as inheritances. He also inserted in the agreement at the time, which I gave insignificant attention to, a clause that in the event of my former wife's prior death, the money, instead of being returned to me would be shared between my son and present wife. My former wife unexpectedly died on September 2014 and my son withdrew his money (£50K-odd) immediately. He will not return it, claiming that I had no legal right to demand it back.

How do I stand please?

Expert:  Jo C. replied 1 year ago.
Sorry, not my area.
I will pass this onto a family lawyer for you.
Customer: replied 1 year ago.

I have paid £38 by MasterCard.

My problem is this.

In 1996 I obtained a divorce from the wife I married in 1960. A Consent Order was granted confirming the financial settlement:- equal share of assets, a monthly payment by me until her death (expected to be after mine) and, after my death, compensation (for her forfeiture on divorce of a civil service widow's pension) to be paid from subletting or the sale of my property. I remarried in 1996 and I now live with my second wife in a property owned by both of us but paid for from her earnings. I sold my previous property in 2012 and, by what I regarded as an informal arrangement with my son (born in 1962 by my first wife), the proceeds were put into a joint bank account in the names of my son and my present wife (the then intended executors of my Will) to provide the compensation to my former wife after my death and until hers. The remaining money would be shared, on my former wife’s death between my son and present wife as inheritances. This arrangement was arranged and agreed by email in 2012. My son also inserted in the agreement, which I gave insignificant attention to, a clause that in the event of my former wife's death before mine, the money, instead of being returned to me would be shared between my son and present wife. My former wife unexpectedly died on September 2014 and my son withdrew his money (£50K-odd) immediately. He will not return it, claiming that I had no legal right to demand it back.

How do I stand please?

Expert:  Clare replied 1 year ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
What was the exact wording of the Order with regard to the final payment?
Clare
Customer: replied 1 year ago.

Extract from Consent Order dated 26 November 1998: "AND UPON the Respondent having executed a Will on the 8th January 1997 which includes a provision directing the Executors and Trustees of the Will to invest the net proceeds of sale of 12A The Maples,***** Bexhill-on-Sea or such other property which the Respondent may own as his principal residence at his death upon trust to pay the income to the Petitioner until the Petitioner's death, re-marriage or cohabitation for three months or further Order"

In September 2012, I "the Respondent" put the Flat's sale proceeds into a joint account in the name of my son and my present wife (my intended executors and trustees of my estate) to provide my former wife with the promised income after my death. My Will bequeathed any balance after the death of my former wife (expected to be after mine) to be shared equally between my son and my present wife.

The "agreement" my son devised and notified to me by email in August 2012 matched the above Consent Order wording with the addition of "If you survive Mum, the whole thing voids on Mum's demise. Ania [my present wife] and I receive half each of the money."

In reply, I emailed: "OK - scheme agreed/accepted as now understood completely." With hindsight this was clearly stupid of me (aged 78 at the time), not expecting to survive my former wife.

Unexpectedly my wife died in September 2014 and, although we accept that the Consent Order and the relevant part of my Will are now void, my son insists that I am bound by this "agreement" between us. He claims that it complies with a condition my wife insisted upon before agreeing to a divorce. The only promise I made via the solicitors was in my executed Will as reported above. There is no mention in the correspondence in 1995-97 of any promise to pay any money to my son in the event of my former wife's death before mine, nor, I am certain, did I make such an oral promise to my former wife before the divorce.

I was content for my son to receive half of the money "in trust" AFTER my death and after my former wife's because I expected he would have to pay additional support to my former wife before her death.

I was stupid to agree this "agreement" but am I bound by it considering that it is simply by email exchanges? And if not, what should be my next step please?

Expert:  Clare replied 1 year ago.
Hi
Just for clarity - the proceeds were a total of £100,000 and your son has taken £50,000 based on the wording in the email - is that correct?
Clare
Customer: replied 1 year ago.

£101,716 to be exact i.e. £50,858 each. The whole amount was offset against my son's mortgage payments and he paid his monthly "saving" into another joint account with my present wife which was to be shared between them if not used to support my former wife after my death. We would wish my son to retain my present wife's share of this "interest earned". My present wife also withdrew "her" share from the joint arrangement with my son in September, effectively returning it to me as we share our resources. My son placed "his" share in one of his own accounts. Sorry for all these complications.

Though probably not relevant I should perhaps mention that my son maintains it was his mother's wish, and I had promised her, that he should receive half of the value of my personal property - initially he claimed even if she died before me (though he has been unable to produce documentary evidence of this - because there never was any) but now he maintains that as she still wanted him to have the same benefit now (on her prior death) his taking the money now ensures it will not be "spent" (as would indeed be the case because my present wife is 2012 years younger than me and will have a considerably lower income after me). Our intention was to leave half each of our eventual estates to my son and my wife's brother (in new mirrored Wills) but that is unresolved because of the present dispute.

I repeat: my basic question is whether the "agreement" I stupidly agreed to by email is binding on me now my former wife's death has occurred before mine and only two years after implementing the "agreement" I had with my son (which I had assumed to be an informal family arrangement). If it isn't binding, how best can I seek redress?

Many thanks.

Expert:  Clare replied 1 year ago.
Hi
I assume that you wish to have the money returned so that you can do whatever you wish with it?
Would you have given him the money if he had asked?
Clare
Customer: replied 1 year ago.

That's correct. I would not have given him the money voluntarily (whereas I was extremely generous in the past: private school fees, Cambridge maintenance contributions, purchase of musical and electronic instruments when required, assistance with the deposit on his first property in the 1970s, gift of £5K from my retirement lump sum in 1995). He is now very wealthy: single, no dependants, high salary (University professor with royalties for publications, consultation fees etc), and now is the sole beneficiary of my former wife's estate (including a mortgage-free flat worth 250K at a guess). My present wife's and my joint annual income in now about £48.5K.

For him to be an eventual "half" beneficiary of my property sale proceeds after my death was merely the final disposal of whatever was left after being used to supplement my former wife's until state and teacher's pensions her death, which was a requirement of the Consent Order.in 1998, when my son was then a low-paid researcher.

Expert:  Clare replied 1 year ago.
Hi
At the time you received the email what did you think that paragraph referred to?
Clare
Customer: replied 1 year ago.

To explain matters more clearly I think I must give you more detail about the “scheme” (researched from email records). It concerned only the administration of the money I had received from the net sale proceeds of the flat that I bought outright in 1995 (solely in my name). I agreed, in order to comply with the Consent Order, that the money should be placed in two accounts (which we called “A” [my present wife’s eventual inheritance] and “B” [my son’s eventual inheritance]) which would be offset against my son’s mortgage (on his expensive London property). He would then deposit the resultant savings in his monthly mortgage repayments in a third account (“C”). We had hoped initially that all three accounts would be jointly in the names of my son, my present wife and me but, as the Bank could accept only two joint signatories, I agreed (because my son and my present wife were to be my eventual executors) to opt out of the accounts’ “ownership”.

The final form of the scheme my son offered in August 2012 was:

“1. If I survive both you and Mum:-
1.1 If you survive Mum, the whole thing voids on Mum's demise, Ania gets the content of Account A, I get the content of Account B, and the content of Account C is divided 50/50 between us (viewed, simply, as interest accrued proportionally).
1.2 If Mum survives you, Account C is used to supply her stipend. On her [“Mum’s”] demise, Ania gets the content of Account A, I get the content of Account B, and any remaining content of Account C is divided 50/50 between us (ditto). If Account C becomes empty [before “Mum’s” death], I will supplement the effective income from Accounts A and B as required. I undertake to review this situation at Mum's demise and to determine if any of the money in Account A can be released early, should Ania desire it.
2. If you and Mum survive me:-
2.1 Julian [my son’s long-term partner] takes over and administers the accounts as above (he's agreed to that). In the unlikely event that Julian and I both fail to survive you, we'll need an appointee.
3. The one thing we haven't specified is what happens should Ania meet an untimely end before all this has run its course, but after your demise (ie in case 1.2). That ought to be sorted explicitly too, for the benefit of her dependents, if she has any.”

I had been unsure of how the offsetting of my son’s mortgage was to work and also I had asked whether I could withhold some of my money for the various renovations that were in train in our new property. Having received an explanation of how Account “C” would be funded and having accepted that to withhold some of my money might be contrary to the terms of the Consent Order, I gave my agreement to the scheme on 29 August 2012: “OK - scheme agreed/accepted as now understood completely.”

In December 2008 when the “scheme” was being thought about, my son emailed:

“It allows me to promise the following, on account of the interest it saves me: I will take over all payments for Mum, should you predecease her, and Ania can take her half of the proceeds from The Maples [my flat where my present wife and I were still living] immediately, and not have to worry about trust funds or anything. If the converse should happen, we’d immediately divide the money and there’s nothing further to worry about.” I replied about the “converse” clause: “i.e. if Dil departed before me, the original net proceeds from The Maples would still be available and would then immediately be divided equally between you and Ania? - actually this might suit me better than my personally appearing to have “substantial” capital in the event of necessary residential care admission.” With hindsight, this was a stupid argument for me to make - I do not now remember writing it or understand my illogicality at the time. But I did write it.

Coming now to your specific question……

When my former wife died in September 2014 and my son began to dispose of the joint accounts, I genuinely did not remember that my agreement of 29 August 2012 included item 1.1 [above]. Being nearly 80, not surprisingly I frequently experience lapses in short-term and sometimes long-term memory but, in response, my son simply pointed to the agreement I gave.

In August 2012 I had no inkling, though perhaps I should have been more sensible, that my former wife would die before me. Admittedly she had had a breast growth removed in 2010 and a mastectomy in 2011 but my son had reported “the [latter] op went 100% as planned” and had added “As regards ***** *****: statistically, both your heart op [I had a quadruple bypass in 1999] and Mum’s cancer treatment have very good prognosis, there’s no reason to suppose that either of you will be affected again. The key probabilistic determinants of the period that I would expect to have to cover [i.e. operate his “scheme”] are the differences in your respective ages and the difference in life expectancy between men and women [I was 18 months older than my former wife] - his conclusion was that she would survive me by 10 years. He has recently explained that it was the oncologist who had given my former wife a clean bill of health in 2009.

I cannot have given sufficient consideration to 1.1 [in the agreement] in August 2012 before agreeing it but I usually have had to concede that my son’s views generally swayed mine (we parted intellectually when he reached the age of 8 !). Another factor at that time was my eagerness for my Will to be changed as soon as possible so that the Consent Order’s requirement would not “bite” on our new property should I die before amending it - but my son did not have time to consider my draft amendments before my wife’s terminal state became obvious (possibly a year ago) and progressed because he did not wish to worry her over such matters.

As the matter now stands, my son feels that (because of our “agreement”) he is now entitled to a premature inheritance of £50,858 now to ensure that he receives the whole of the money he believes my former wife wished him to have, albeit although she has died first (contrary to all expectations) - even though the implementation of the “scheme” has cost him nothing. To return it to me would indeed probably be the end of any substantial inheritance for him because I now intend to leave everything to my present wife, while in her intended new Will her estate would be shared between my son and her brother. Moreover, despite our continuing efforts, my present wife’s income after me will be considerably less than we have now and it seems very likely that in later life she will need to seek equity release on our property, in which case her eventual estate will be reduced considerably (she is 21 years younger than me and remarkably fit for her age partly through maintaining our garden and a small allotment, with which I am unable to physically to help her, regular jogging and long hikes with the local Ramblers Assn). If my son retains the full amount of Account “B”, my present wife will bequeathe her eventual estate solely to her brother.

Incidentally, my son’s final words to me in an email of 24 December 2014 were: “Do not expect to see me again. So, so disappointed.” In any case I have not seen him for five years and rarely since 1995. All so hurtful to me.

I am not confident (because of my stupid agreements at the time) that I can ever reverse what has happened but your advice would be valued as to whether it might be worth a shot, and, if so, how.

Expert:  Clare replied 1 year ago.
Hi
May I ask why you did not simply invest the money yourself?
Clare
Customer: replied 1 year ago.

Simply because of low interest rates - the money my son was "saving" on his mortgage relief (from Accounts A and B) for depositing in Account C was much higher than any other yield I could have found.

Expert:  Clare replied 1 year ago.
Hi
Who suggested this?
Clare
Customer: replied 1 year ago.

My son. Otherwise the yield from capital invested would probably have been insufficient for my former wife's supplement after me and she might well have gone back to the Court before my death in an attempt to get a more generous settlement for her. My son's scheme hopefully would have preserved the capital totally until her death, for passing on as inheritances to my son and my present wife. All this seemed reasonable at the time. When my former wife died in September 2014, having forgotten about 1.1, I naively assumed that, because her death made void the Consent Order and the associated Will clauses, my son's scheme also became void. Hence the accusations from him that I was trying to renege on our prior agreement etc. He will not accept my explanations of failing memory and will not consider cancelling the agreement on the grounds that it was my former wife's condition on agreeing to a divorce in 1996..

Expert:  Clare replied 1 year ago.
Hi
Who told you that this is what the Order meant?
Clare
Customer: replied 1 year ago.

I’m not sure to which period your further question relates but here is my reply to the meaning I have assumed.

Neither the Consent Order nor the associated Will clauses provided for the disposal of the capital derived from my property sale in the event of my former wife dying before me. The relevant clauses in the associated Will (which is still unamended) are:-

“6. I give my property at 12A the Maples,***** Bexhill-on-Sea or such other property which I may own as my principal residence at the date of death free of tax “The Property” to my Trustees to hold the same upon trust for sale with power to postpone the sale without being liable for any loss and my Trustees shall invest the net proceeds of sale as authorised by this Will and those proceeds and the Property from time to time representing them are referred to in this clause as “The Property Fund”.

7. I direct that my Trustees shall pay to my former wife [etc] to compensate her for the cessation of maintenance payments which will cease on my death the net income from the Property Fund and the net income from the Property until sale or until her cohabitation for a period of three months remarriage or death whichever shall be the sooner and in the event of her cohabitation for a period of three months remarriage or death whichever shall be the sooner the said capital and income shall be held for such of them my son [etc] and my wife [etc] and if more than one in equal shares and the following provisions shall apply [administrative instructions].”

I have always assumed that the reference to my former wife’s “death” in this context is not intended to be applicable also to her death before mine.

The Consent Order was drafted by the respective solicitors and the Will was drafted and executed by my solicitor.

Neither I nor my son considered it necessary to seek legal advice before establishing his scheme in August 2012 because we felt confident that it was not inconsistent with my Will and complied with a clause in the Consent Order:

“Save as aforesaid, and providing the Respondent shall have complied with his undertaking not to alter his testamentary dispositions in a manner inconsistent with the provision of his Will above recited and the provisions of this Order, the Petitioner’s and Respondent’s claims for financial provision and property adjustment orders do stand dismissed and neither the Petitioner nor the Respondent shall be entitled to make any further such application in relation to their marriage under the Matrimonial Clauses Act 1973 [etc]”.

Please come back to me if I misunderstood your last question.

I am so grateful for your forensic examination of this matter.

Expert:  Clare replied 1 year ago.
Hi
Not quite what I meant but useful nonetheless!
What I meant was why did you not simply use the money for your next home?
Clare
Customer: replied 1 year ago.

We could not sell the flat at a reasonable purchase price for several years of trying and, in any case, I wanted to preserve it to support my former wife after my death and to protect my wife from having a problem with the terms of the Will after my death (we feared the new property would be subject to the requirements of the Will and Court Order). My wife has a small income from teaching English to foreign students (she herself is a Polish post-graduate, now a naturalised Brit). She had saved sufficiently from her income over the years to enable us to purchase our present home outright which became available 6 months before the sale of the flat.

Expert:  Clare replied 1 year ago.
HI
Thank you for that.
Finally - aside from your current home - what other assets and income do you have?
Clare
Customer: replied 1 year ago.

Our bungalow is probably worth £200K now after the considerable renovations we have achieved. I have £16K savings and my wife has £66K (including the £50.8K received from "Account A" in September 2014. Our joint annual net income is £53.2K.

Expert:  Clare replied 1 year ago.
Hi
Please confirm that the bungalow is the Matrimonial home, and how much of the income is contributed by your current wife
Clare
Customer: replied 1 year ago.

Yes, the bungalow is in the joint names of my wife and me and we live here together. It was bought from her savings, namely her earnings from 1998 (we were able to live - admittedly quite frugally - on my income alone). Her net income is £14,100 pa.

Expert:  Clare replied 1 year ago.
Hi
It is clear that you were trying to act honourable by investing the funds from the sale of your former home in order to ensure that the payments to your first wife could continue.
It appears that your son persuaded you to invest these in a way that was financially beneficial to him, and sent you an email which set out the arrangements.
You clearly understood that if you ex died before you then the money would immediately be divided between your son and you current wife, since you emailed him back confirming this.
The question is whether or not you fully understood this and that you genuinely intended that your son would have an early inheritance in this way
I have to say that in the face of that email from you it will not be easy to say that you did not wish this to happen HOWEVER that does not mean that you cannot do so given your age and your lack of legal advice.
As a starting point you could try and negotiate with your son using family Mediation
www.familymediationhelpline.co.uk - if that fails then you will hav eno option but t start court proceedings against him using Money Claim online
https://www.moneyclaim.gov.uk/web/mcol/welcome
and allow the court to decide the outcome.
I hope that this is of assistance
Clare
Customer: replied 1 year ago.

Clare

Your advice, which I accept wholeheartedly, is as I feared it would be. My agreement to an informal financial arrangement was unequivocal and I think to attempt Court recovery of my considerable loss would be a waste of money - I’m sure that for me to try to play the “age card” would be unconvincing (thankfully, at present my “senior moments” are rare!)

This was the first time I had applied for legal advice via JustAnswer and I have been extremely impressed by how it works and your personal contribution in particular.

I did not expect more than a superficial appraisal of the facts followed by a yes-or-no reply and so I thought it would be helpful and sufficient to condense my problem into a simple basic question. How wrong I was.

I have been astonished by your thoroughness. Over a couple of days, your many incisive questions drew from me the whole sorry saga and the consequences for the parties involved, which you then examined forensically. My score would be 20/10.

I am most grateful for your diligence. If only I could find a local solicitor of your calibre!

Below, I have rewritten the above in “report” form should you wish to promulgate it on the website under my log-in name “Briania”.

“Clare’s advice, for which I am extremely grateful and accept wholeheartedly, is as I feared it would be. (My agreement to an informal financial arrangement was unequivocal and to attempt recovery of my considerable loss would be a waste of money.) This was the first time I had applied for legal advice via JustAnswer and I have been extremely impressed by how it works and Clare’s personal contribution in particular. I did not expect more than a superficial appraisal of the facts followed by a yes-or-no reply and so I thought it would be helpful and sufficient to condense my problem into a simple basic question. How wrong I was. I have been astonished by Clare’s thoroughness. Over a couple of days, her many incisive questions drew from me the whole sorry saga and the consequences for the parties involved, which she then examined forensically. I would give her a score of 20/10 because of her reassuring diligence. If only I could find a local solicitor of her calibre!”

Expert:  Clare replied 1 year ago.
Hi
Thank you for your kind words!
Clare

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