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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26070
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My Mother passed away in December after living in a care home.

Customer Question

My Mother passed away in December after living in a care home. Prior to this she lived with my brother for a year after paying £93,000.00 for an extension to be built. After a year Mums health deteriorated and my brother did not want to look after her anymore. Hence the reason she went into a care home. My brother put his house up for sale and wrote a letter saying he would pay back between £40 - £50,000.00. He sold his house and has only paid back £5000.00. He is an Executor in my Mothers will along with myself and my other brother. Is it possible for my Mothers estate to pursue him for the monies owed?
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 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 :

To whom did your brother write the letter you refer to and does a copy still exist please?

Joshua :

Do you know if your mother agreed anything with your brother when she paid £93K for the extension - e.g. whether it was to be a gift or loan or was nothing discussed?

JACUSTOMER-4vxwddxp- : My brother sent the letter to me and I have this.
JACUSTOMER-4vxwddxp- : Nothing was discussed as to whether it was a loan or gift
Joshua :

Thanks.

Joshua :

Finally do you know a) what your mother's understanding was at the time and b) why he only agreed to pay back £50K rather than a higher amount and lastly c) under what circumstances did he write to you? For example were you acting as your mothers attorney at the time?

JACUSTOMER-4vxwddxp- : I do not know what my Mums understanding was at the time.
JACUSTOMER-4vxwddxp- : The letter came in response to a solicitors letter sent to my brother by my other brother stating that as Mum had only lived there for one year and they did not want her anymore that it was only fair to pay some money back. This is when he sent letter about paying the £40-£50k back
Joshua :

Thanks

Joshua :

The position is as follows: there is no presumption of gift when it comes to a mother giving money to a son. What this means is that if your brother is to claim that the money was anything other than either a loan or an investment in his property then the burden of proof is upon him to show that the money was a gift by his mother.

Joshua :

If he is unable to do so then he will be liable to repay to his mothers estate either the full amount paid by her towards his property or the value of the improvement to his property calculated by reference to the value before and after the extension as is either agreed between the executors and your brother or is decided by a court

Joshua :

The above repayment can obviously be discounted by the amount commensurate with his entitlement under your mothers will - so for example if the estate is to be spilt between the three of you equally the amount could be discounted by a third.

Joshua :

There is an obvious conflict of interest between his acting as an executor and of a creditor of the estate in respect of this issue.

Joshua :

If probate has not yet been applied for you and your other sibling may consider an application for probate passing over your other creditor brother under s116 Supreme Court Act 1981 on the basis that he is unable to administer the estate properly because of this issue. Evidence would need to be presented in this respect and you would need a soliciotr to assist you with the application though it is relatively straightforward in practice and does not require a court appearance

Joshua :

If probate has already been granted and you are unable to agree on how to proceed, you may need to consider an application to remove your brother as exector.under s50 Administration of Justice Act 1985 on the basis that it is not in the best interests of the beneficiaries of the estate for him to act. This is less straightforward than the above but again a solicitor can assist you with the application if it is necessary.

Joshua :

If necessary you and your other sibling can issue a claim against your brother for the monies paid by your mother on the basis of resulting trust - that she made no gift of the monies and as a result your brother is holding the monies on a resulting trust on behalf of the estate and ow must repay them

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Joshua :

Has the above answered your questions satisfactorily?

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

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?