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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I am executor of my stepfather will along with my half brother.

Customer Question

I am executor of my stepfather will along with my half brother. I have found that my brother and sister in law obtained and used my dads debit card for 18 months until COP was in place, they also sold my late mothers car and put the money in their bank not my stepfathers, and got my dad to sign my late mums life ins. over to their bank acc. My dad lacked capacity, with no insight. he had never used the card and would not have been able to, I believe they found the card in my mothers document box, along with the pin number when my mother died. The amount missing is approx. £8.000
Submitted: 1 year ago.
Category: Law
Expert:  Joshua replied 1 year ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience. May I ask how long ago these things happened please?From what you say do you have documentary evidence to support what you say?
Customer: replied 1 year ago.

My mothers death was Jan. 6th 2008, My stepfather was diagnosed with dementia on Nov. 2000. By the time my mother died my dad had no capacity, lacked insight and could not manage his affairs. My brother and sister in law must have found my dads debit card along with pin number in the document box my mother kept. HSBC bank have confirmed that as it was a joint account, two cards would have been issued., although my dad never used his, and would not have know how. On the 10th Jan 2008 the debit card was used to draw cash from an atm, this continued along with random spending on the card untill may 2009 when COP came into play, then the card used stopped. along with the sale of my mothers car, and the insurance of my mother, which my sister inlaw got forms for my dad to sign, knowing he lacked capacity. amounts to approx. £8.000

Expert:  Joshua replied 1 year ago.
Thank you. Finally when did you discover these things and could you have reasonably discovered them earlier? If you could have discovered them earlier do you think when could you have potentially reasonably be expected to have discovered them?Are you prepared to involve the police?
Customer: replied 1 year ago.

I had my suspicions in 2008 but could not prove anything. I was not able to obtain info from the Bank concerned. My half brother inherits my family home (value approx £300.000) I inherit any money that is left (approx £40,000) less any debts, probate etc. My brother and I always agreed that when our parents died we would always split every thing down the middle, regardless of any wills. When he and his wife found they get the house, they changed and no longer to spoke to me. My brother did not realise I would be joint executor with him on our dads will, this enabled me to obtain all bank statements and copies of all cheques from 2008, this is when I could confirm my suspicions of theft/fraud. I have files full of COP papers, medical reports, etc dating back to my mothers death. For your information, My mother and father purchased the property on March 9th 1956. In April 1964 my father died. In 1968 my mother married my step father, he treated me as his daughter, We loved each other dearly. I will also point out, that my step fathers will ws a mirror will of my mothers made in 2002, two years after my dad was diagnosed with dementia.

Expert:  Joshua replied 1 year ago.
Thanks. Why do you believe your mother and step fater arrange their will so as to favour your brother? Do you have any view on this?
Customer: replied 1 year ago.

Only that he is 18 years younger than me, was just starting out in married life, where as I was at the time, married with 3 children, and what was considered comfortable, My mother always favored my brother, this was not a problem for me as I loved my only sibling dearly. Whereas, my step dad loved us both equally, my children were his beloved grandchildren.

Expert:  Joshua replied 1 year ago.
Thank you. Based on what you say your stepbrothers actions would appear to amount to theft. It is possible of course that your stepbrother may argue that he had permission to do as he did however if your stepfather lacked capacity at the time, he would not have been able to grant permission and therefore this defence would appear to fall away.although your stepbrother is a beneficiary of the estate, in financial terms, because of the way the will is constructed, the amounts he unlawfully took effectively come from your share of the estate for the obvious reason that have not been removed, based on what you say of the terms of the will, you would be entitled to inherit those assets.There are two ways in which you can consider proceeding: you could look to involve the police on the basis of financial abuse of your stepfather's estate. police forces have dedicated officers that deal with elderly financial abuse and if you wished to do so, you could contact your local police station and ask for contact details for relevant officer who depended upon the amount of evidence you have, may be prepared to prosecute.The other approach you can take either in addition to or as an alternative to the above is to initially discuss the matter with your brother and invite him to repay the amounts in question to the estate either from his own funds or as a deduction for the proceeds of the house if it is to be sold or threaten to involve the police and further advised that as executor of the estate, you will also look to issue proceedings to recover the monies that were unlawfully taken in the County Court. You could in addition refuse to approve a final distribution of the estate to him either in the form of refusing to transfer the property into his name or if it is intended that the property will be sold, refusing to pay out the full proceeds to him retaining retention sufficient to cover the potential repayment pending either his agreement or a court order you obtain from the county court.Finally if the estate is taxable for inheritance tax (though I suspect it is not from the figures you quote if you are successful in obtaining repayment, you may need to advise the Revenue. This is not necessary if the estate is non inheritance tax paying.If you decide that you need to issue proceedings in the County Court, the simplest way is by using the course online issuing service:https://www.moneyclaim.gov.uk/web/mcol/welcomeAlternatively you could issue on paper using form N1:http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=338 I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me.
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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Customer: replied 1 year ago.

Thank you so very much for your sound advise, one further question, if you don't mind. I would like to consider making a claim under the 1975 inheritance act, for a third of the property value, as my natural father paid towards this property, as did my mother. I am now a pensioner on pension credit, I live in rented accommodation, ( 1 bed flat ) I could no longer own my own home due to ill health, and had to retire. I was employed in severe and enduring mental health, and also worked as a pace trained appropriate adult. I cannot afford to pay a solicitor for this service, could you advise on the best way about this if you think it is possible, Many thanks.

Expert:  Joshua replied 1 year ago.
A pleasure. Firstly any such claim would need to be made on within 6 months of any grant of probate or it will be time barred. Under the 1975 Act you are only entitled to claim reasonable financial provision for what is required for your maintenance- i.e. to support you. "Maintenance" is not defined by the IA 1975 but the courts have declared that word to mean what it would be reasonable for that claimant to live on, at neither a luxurious, nor poverty stricken level. There is the inevitable need to consider whether the amount that has been left for you is, despite favouring your brother sufficient maintenance already. There is a danger it could be and therefore there whether the cost of pursuing a 1975 Act claim would be justified. I do not suggest it is a non starter but it would need to be a factor that is considered.There are a few firms that undertake no win no fee work for inheritance disputes e.g. http://www.sleeblackwell.co.uk/You may wish to contact them to arrange an assessment for your potential claim.
Customer: replied 1 year ago.

Thank you very much indeed for all your help.

Expert:  Joshua replied 1 year ago.
Best wishes

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