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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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, complicated so will try to keep short. Mum made my

Customer Question

Hello, complicated so will try to keep short. Mum made my 2 sisters attorneys. They were removed by the COP. In addition COP asked for audit of mums finances as thought was sisters had misappropriated her funds. Mum died. Solicitors appointed by COP completed audit but are now saying that we - the rest of her surviving daughters and the beneficiaries of her will (my sons and nephews and nieces) - cannot see the audit report. We know that the sisters lied to both the COP and OPG and we are sure that they also lied to solicitors over mums money.
We asked COP to order solicitors to release audit, but the COP have now said that as mum is dead their jurisdiction has ended.
Now what? We paid the solicitors a total of £37,000.00 and we have nothing and it would appear the sisters have got away with it
Thanks
Gill
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 if your mother left a will please and if so who is the executor(s)?Presumably I am right in thinking that the money for the solicitors fees came from your mothers money?
Customer: replied 1 year ago.

Thank you for your reply

1. mum did leave a Will and the COP solicitors were executors

2. Yes it did

Expert:  Joshua replied 1 year ago.
Thank you. Are the solicitors acting as executors or have they been asked to resign?
Customer: replied 1 year ago.

They are and have been executors. I presume the job is now finished as they have distributed the remaining estate (after their share of it!) to the beneficiaries

Expert:  Joshua replied 1 year ago.
Thank you. Are you a residuary benefiary of your mothers estate? If so have you received a full account of how the estate was calculated to your share? If you did, did you sign and return a copy to the executors?
Customer: replied 1 year ago.

My sons are beneficiaries, not me, plus 7 other grandchildren. all but one of the beneficiaries signed the statement and returned it. we found out that by signing and returning we couldnt challenge the accounts. however, solicitors backed down and paid out during complaint process and with my son not signing.

Expert:  Joshua replied 1 year ago.
Thanks. Any of the residuary beneficiaries have a right to a full inventory and account and can challenge the accounts if do not accept them. Those that have signed will be very limited in what they can do as you are correct that signing them does infer acceptance. However your son if he has not signed them can challenge the executors on the following basis. executors have a duty under the Administration of Estates Act to preserve and administer the estate properly and diligently. If they are in possession of the audit report which indicates that monies were misappropriated from your mother's accounts and they failed to pursue these individuals concerned for recovery of those sums then this would be to the detriment of the residuary beneficiaries. Whilst there is no absolute right for the beneficiaries to see the audity report, if your son has not signed the estate accounts he can challenge them on the basis that he considers that there may be further monies due to the estate which he is not satisfied the executors have given a full explanation for. The question can therefore be asked as to whether the executors were able to identify any information that suggested that money was due to the estate from the individuals concerned and if so whether that money was pursued and if not why not. it may be that there is a very good explanation for not pursuing them, either being that there was no significant evidence identified all of the cost of doing so would outweigh the benefit but whatever the position, the residuary beneficiary it was not already accepted the accounts is entitled to answers to those questions. If the executors refuse to respond or the beneficiaries not satisfied with their response, ultimately that beneficiary can seek an administration order under CPR Part 64 to request that the Court inspects the audit report and ascertains whether in its opinion there is any further money due to the estate on the balance of probability and if so, make an order for the executors to recover those monies and consider whether to press charges on the part of the estate. If he wishes to do so he will need to make an application using the following form though he would need to be conscious of costs. as a starting point, such costs would be payable from the estate but if the court finds that your son has behaved unreasonably, it may order that he is liable for some or all of the costs. If he has made reasonable requests of the executors is less likely that the court will find unreasonable conduct on his part but he will need to consider the matter carefullyhttp://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=424 finally, as an alternative to the above, there is nothing preventing any of the residuary beneficiaries making a report to the police if they believe there is evidence of fraud against the estate. It is up to the police as to whether they choose to investigate the complaint the police have powers to obtain a copy of the report and any other evidence they reasonably require in order to fully investigate the complaint received. This may an alternative to the above which of course does not carry any cost however it would be reliant upon whether the police were prepared to investigate on the basis of the complaint or not. 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 I'd be very grateful
Customer: replied 1 year ago.

Thank you for your detailed reply

Firstly, the solicitors/executors can only make a judgement on whether funds were misappropriated or not based on what the sisters have told them. It could be on what they have been told (and I was told by executors that only 'set' questions were put to them, what were the questions? how do we know the sisters answered them truthfully - how would they know?) there appears no misappropriation of funds. However, if the sisters told out and out lies they simply do not know if funds were misappropriated.

The Police are not interested, we have tried that.

Again, CPR Part 64 can only go on the information the sisters give them. We KNOW that theft took place, we KNOW they fiddled mums books, we KNOW they stole chattels, we KNOW they lied to COP and OPG

It seems there is nothing we can do?

Expert:  Joshua replied 1 year ago.
I would be very pleased to assist with your follow up questions - I do not consider based on what yous ay above that you are powerless to act. I should be very grateful if you would kindly click a rating for my service to date. I will be very please to continue to assist with your follow up questions without further charge. I am grateful for your understanding.
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and 5 other Law Specialists are ready to help you
Expert:  Joshua replied 1 year ago.
Many thanks. The executors are not limited to just what they are told. They have full access to your mothers bank account information and if there are allegations of misappropriation they have a duty to invstigate. In addition they will have the benefit of the audit report they were instructed to prepare. Investigation would include reviewing the accounts and identifying transactions which appear suspicious and then seeking an investigation of what those transactions were. Depending on the transactions in question, there may be clear evidence that the funds were taken by attorneys - e.g. if funds were just transferred into the attorneys account - or there may not - e.g. if cash was withdrawn. In the case of the latter, information should be sought from the attorneys to account for the various debits that cannot be explained and the responses or lack thereof to that information would need to be weighed. If there is evidence of fraud based on those investigations, then the police have a duty to investigate (though I agree that in practice that is sometimes esaier said than achieved) and the executors have a duty to consider civil recovery which only requires proof on the balance of probability which is a much lower standard than criminal which is beyond reasonable doubt. An administrative application would involve a judge looking at those accounts or the audity report if that work has already been done and other information that was supplied in explanation of suspicious transactions and making a decision as to whether the executors have made satisfactory enquiries to discharge their duties so again such an application will not be limited to just the evidence supplied by attorneys alone. Finally you say you know that your mother was defrauded. Of course there does need to be evidence produced of this as above, but your own statement and that of other family members is evidence in itself. If the evidence is hearsay - what you heard from someone else etc - it is of little value but if you have direct information yourself - e.g. witnessing a fraudulent act or witness an admission - your statement itself has value. It is of course not straightforward when you are relying on third party executors and they are less than cooperative but if the family is suficiently motivated your son can ask questions to satisfy himself that the executors have discharged their duty as above and there is the option of making an administrative application as above if not which perhaps the family would agree to share in terms of costs to lessen any potential liability.
Customer: replied 1 year ago.

I feel we are going round in circles!

I have proof, not hearsay, therefore my statement has value. But what do I do?? Who do I give it to? I have given it to COP and to Solicitors. For instance, they said that they gave £250 to insurers for an excess. I have proof they lied and did not. They say they paid someone with cash and then stated it was a cheque and presented the cheque.

oh well, thanks anyway

Expert:  Joshua replied 1 year ago.
If you have actual proof and this has been given to the executors then one of the questions is what did they do with that? Why did they feel in view of the evidence generally and your evidence there was no prospect of success in pursuing them. If this is not satisfactorily answered this is one of the questions that could be included in an administrative application to challenge the executors. As above the executors have a duty to the beneficiaries. A court can determine in light of the evidence you can bring and the evidence it can require from the executors whether they have acted reasonably and if not can make an order as to what should be done by the executors.
Customer: replied 1 year ago.

Thank you - thats better (not patronising, just dont know what else to say or how to put it)

I would up your rating if I could but have to pay again

thank you

Expert:  Joshua replied 1 year ago.
I am glad I could help. Thank youfor your kind words. I know it can be frustrating dealing with thee matters when relying on uncooperative executors

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