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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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1.Can a beneficiary whose a brother of a deceased testatrix

Customer Question

1.Can a beneficiary whose a brother of a deceased testatrix ask for bank statements and emails between the other beneficiary and the deceased testatrix?
2.Can an email exchange between the deceased testatrix and another beneficiary be called as an asset of the estate of the deceased testatrix?
3.Is it a cyber crime if an email of a deceased testatrix is opened by a beneficiary of a will who is a sibling of the deceased testatrix?
Submitted: 11 months ago.
Category: Law
Expert:  F E Smith replied 11 months ago.

1 beneficiaries of a will do not even have the right to see what’s in the will although they can get a copy from the probate registry wants its admitted to probate.if they want to query the well or contest it, they can make an application to court for disclosure of any documentation but there is no absolute duty on executors to give details of bank statements and emails.

2 It depends whether the email exchange is of any value as it would be if, for example, was between a celebrity and another party. If it’s just being referred to as an asset of the estate so that the executors are in control of it, then the executor is in control of it. however, the executor is only in control of it in so far as the executor is the personal representative of the deceased and the deceased is one party as is the other person in the email exchange who has just as much right to the contents of the emails as the executor

3 This is probably a breach of the provisions of the Computer Misuse Act although the police are unlikely to be interested unless there is an allegation of fraud or blackmail or a serious crime has been committed as a result.

Can I clarify anything for you?

Please rate the service positive. It’s an important part of the process by which experts get paid.

I can still clarify things for you.

Best wishes.

FES.

Customer: replied 11 months ago.
Dear Sir,
4.Can I send bank statements by whitening all other transactions except for the relevant transactions related to the deceased? Would this be accepted as proof of showing bank statements or do I need to send all bank statement, but this would disclose other clients names?5.The estate is still unsold due to caveat brought by one beneficiary,the brother of the deceased testatrix.Due to that, the price of the estate is dropping a lot,so my question is, how can the other beneficiary remove the caveat?
Also how many times can the brother apply for the caveat,maximum number of years for them not to allow other beneficiaries to sell the estate?
In this matter the executor is there.6.Regarding my previous question on cyber crime: After the death of the deceased testatrix,the beneficiary is the brother of the deceased testatrix,is he able to open the emails of his sister for will purpose?
Is it a Computer Misuse Act or not?
Could this point go against the brother who opened the emails and we can use this in our defence?
Expert:  F E Smith replied 11 months ago.

I see that you’ve given me a negative rating but you’ve asked for a lot more information which seems inconsistent.

Was that an error because I’m happy to follow this up if anything isn’t clear.

You can certainly send bank statements with nonrelevant information blanked out.

The executor now needs to warn off the caveat. The process is explained here

http://www.turbervilles.co.uk/blog/what-is-a-caveat-and-why-might-one-need-to-be-entered/

the only person who is entitled to open emails of the deceased is the executor, and if anyone else does it is a breach of the computer misuse act the police will not be interested. Beneficiaries can be executors and I don’t know who the executor is and hence, I said it was probably a breach.

F E Smith and other Law Specialists are ready to help you
Customer: replied 11 months ago.
History-
I have received an X amount in the will from my dearest friend who has passed away.
There is a Solicitor Firm who is an Executor of the will.
The other beneficiary of the will who tends to be the brother of the deceased has put a caveat.
Her Brother's solicitor firm has challenged my share in the will.
Her Brother's solicitor firm has asked me to provide them my Business Records and my Bank Statement's.
1.Can her Brother's Solicitor Firm can ask me to provide them my Business Records and my Bank Statement's when it is not a court tribunal,criminal trial or a Government's Order?
2.Can an Executor ask me for my Bank statement's and business records when it is not a Court Tribunal,Criminal Trial or a Government's Order?
3.Will has been made by a Solicitor Firm and the two witnesses of the will are Solicitor's only.
Customer: replied 11 months ago.
1.Under ACTAPS Code for probate and trust disputes,who can ask me for my Business Records and Bank Statement's when it is not a Court Trial,Criminal Tribunal or Government Order?2. The deceased was my Best Friend and my Client as well.
Expert:  F E Smith replied 11 months ago.

They can ask you but you’re not under any duty to provide them. However if you don’t, they are likely to assume that you’ve had some money which you may not have been entitled to so it really doesn’t serve a great purpose by not being transparent. As I said earlier, you are at liberty to take out the names of anyone not related to this matter. They can apply to court for a court order for pre-action disclosure of the bank statements if they believe that they are central to a claim by any party who has an interest in the will.

The fact that the will was made by a firm of solicitors and the witnesses are solicitors means that it’s very difficult to contest it on the grounds of undue influence or lack of mental competence.

There are limited numbers of ways of contesting a will.

Lack of mental capacity.

Undue influence.

Fraud.

Promissory Estoppell if someone was promised something and didn’t get itand had relied on the promise

Inheritance (Provision for Family and Dependents) act if a child or spouse was left anything or not enough or if anyone was dependent other than child or spouse and was not left anything.

It is very common for family members to contest money which has been left are best friends because they don’t seem to think that best friends have much right to it. I have known a strange to family members who haven’t seen the deceased for years contest the will when the majority of the estate has been left to a close friend who cared for them for years.

I am assuming that you didnt draft the will.

Customer: replied 11 months ago.
Thank you.
I did not draft the will.
My best friend requested me to write the details of the will which she recited to me as she could not write as she was in a hospice and she had asked me to email her the same thing which she had recited to me.
So on her request i did what she had asked me as a best friend an i emailed her.
Does it mean that i drafted the will?
And she did not want her Brother to make her will or write what she recited as he had been DISHONEST with her.
Customer: replied 11 months ago.
The entire story that I have mentioned above falls under the law of England and Wales.
Expert:  F E Smith replied 11 months ago.

England & Wales is fine. I am in England although the site is administered from the United States. I am a UK qualified solicitor.

In cases like this, it is not uncommon for the solicitor to visit hospice to take the instructions from the client and then deal with the execution of the will also in the hospice.

You said that solicitors drafted the will presumably based upon what you have told them. However if they then visited her in the hospice, they are have gone through the will with her to confirm it’s what she wanted, before she signed it. I’m assuming (correct me if I am wrong) that you merely assisted in putting her wishes to the solicitor.

It would have been better had those wishes been put to the solicitor directly because your “intervention” does throw a slight shadow over the contents of the will. It wouldn’t do if you were not the main beneficiary but writing the contents of a will for someone else, if you are a beneficiary is never a good idea.

Customer: replied 11 months ago.
1.My best friend had asked me to get a solicitor.
2.I was unable to find a solicitor.
3.My best friend herself managed to find a solicitor for her own.
4.I did not meet the solicitor, it was my best friend who met the solicitor.
5.I just emailed to my best friend what she had asked me for, Four days prior to her will which was drafted by the solicitor at
the hospice.
6.The solicitor drafted the will presumabely based upon what my best friend would have asked them to draft.
7.There were two solicitor's at the hospice with my best friend when the will was made,which are to be the witnesses as well.
Expert:  F E Smith replied 11 months ago.

Thank you. It’s looking better if you simply put down in writing what your friend asked for and your friend then gave it to the solicitor.

The situation here is unlikely to cause a problem because the solicitor attended on your friend, the solicitor took the instructions and the solicitor drafted the will and the solicitor would have made sure what was in the letter which you put together, was actually what your friend wanted.

Customer: replied 11 months ago.
Thank you.
Can they challenge the will in such a situation?
His brother is trying to challenge the will by saying that it is an undue influence.
What is your call in the matter?
It come's under whose favour?
His brother is putting lot of pressure on me to settle it via mediation?
What shall i do in such a situation?
Customer: replied 11 months ago.
Does it mean that i have intervened after i explained you the situation?
Expert:  F E Smith replied 11 months ago.

There is no such thing as a will which cannot be challenged.

Because the will was drafted by the solicitor and the solicitor attended on your friend and the solicitors witnessed the signature, it’s not going to be easy to contest and nor is it going to be cheap particularly if they lose.

It is these circumstances which make a challenge for undue influence extremely difficult because it is the evidence and suspicion of the brother compared to the evidence from the solicitor which is going to be difficult to prove in the brother’s favour.

If you had known this person for a very short period of time, it would not be that difficult a challenge albeit not straightforward because of the involvement of the solicitors.

If you had known this person for many years and were very close to them, it then becomes a more difficult challenge.

If the brother was not at all close, then it becomes an extremely difficult challenge.

There is always a risk going to court and depending on whether the brother has been left anything or something and depending on how long you knew your friend and how close your friend was to the brother would depend on whether you feel obliged to attend mediation with a view to letting the brother have some money or not.

Customer: replied 11 months ago.
I am a practising homeopath.
My best friend was also a practising homeopath.
I had known my best friend for seven to ten year's prior to her death.
She used to take my treatment as well by paying me for it by cheque.
We both used to take professional advice from each other regarding our field.
The brother is trying to pressure me by telling me about the code of ethics of Society of Homeopath.
The link that her brother has sent to me regarding the code of ethics is as follows -
http://www.homeopath-soh.org/images/corporatedocuments/SoH-codeETHICS-2015 r1.pdf.He is asking me to read paragraphs 29-30 of the link.
Customer: replied 11 months ago.
I am re-sending the link.
http://www.homeopathy-soh.org/images/corporatedocuments/SoH-codeETHICS-2015_r1.pdf
Expert:  F E Smith replied 11 months ago.

If he is suggesting that if you don’t give him some money from the bequest, he will report you to the Society, that is blackmail and is a police matter.

The relationship you have with your friend is not just a patient relationship.it is also over many years.

Customer: replied 11 months ago.
The letter I received from him reads that.Upon the assumption that a similar form of ethical guidance was in existence in October 2014,my conduct seems to have undertaken contrary to the rules of my own professional regulatory body.He is asking me for the Bank Statement's between me and my Best friend, in regards ***** ***** payment that i received from my best friend in terms of cheque for me giving her homeopathic treatments.
Expert:  F E Smith replied 11 months ago.

Presumably, you have nothing to hide with regard to that payment so my suggestion would be to let him have the statement but blank out everything else andjust show that one payment.

Customer: replied 11 months ago.
Thank you.
Expert:  F E Smith replied 11 months ago.

No problem

Customer: replied 11 months ago.
Can he ask back for the money that i received from my best friend for the homeopathic treatment that i gave to my best friend?
Expert:  F E Smith replied 11 months ago.

The only people who are entitled to seek reclaim of any money would be the executors. The brother of course can challenge the will and ultimately, it would be the court that decided.

If the executors believed that you had overcharged for the homeopathic treatment compared to the amount of treatment you had given, they could take you to the Small Claims Court to recover that money if they were of a mind.

Customer: replied 11 months ago.
Can he ask that amount in the share of the will that i am entitled to get from my best friends will?
Customer: replied 11 months ago.
My best friend was also a practising homeopath so she knew about the charge's of the treatment as we both were in the same field.
Had it been overcharged she would not have paid me.
Expert:  F E Smith replied 11 months ago.

He can ask for what he likes but you’re not under any duty to hand anything over unless there is a court order .

Depending on what he is getting out of the will, you may or may not want to come to an arrangement with him for him to get something out of what you’re getting. It depends entirely on how much there is in the will and how much each of the beneficiaries has been left in the will.

Customer: replied 11 months ago.
Thank you.
Customer: replied 10 months ago.
1.What can i do to prevent her brother from doing any conspiracy by misusing my best friend's email id?Example - "A" a person has an unauthorised access of data of "C" a deceased. "A" does not email anyone for
Five years,but after Five years "A" send's an email to "B" a contact in the deceased's email id and demands
for money help. Where "B" is unaware that "C" is dead, and "B" sends money to "A" thinking that it is "C".2.Who will have to pay the court fee's if her brother applies to the court to get an order to get my bank statement's released?3.Can they get an order from the court stating that I will have to bear the cost's that has been incurred by them for getting a court order for my bank statement to be released?4.My best friend married her husband almost a year prior to her death. Her husband died few days after the marriage. My best friend was partner with her husband for 25 years before the marriage. After the husband's death she sold her husband's Flat and purchased a new flat from the money which she got after selling the husband's flat. We have marriage certificate.
Can her brother still challenge the will?
Expert:  F E Smith replied 10 months ago.

If the brother uses the best friends ID electronically, it is a breach of the terms of the Computer Misuse Act which is a police matter.

If he gets the money as a result of this, it’s fraud if he is not entitled to that money.

It depends on how he explains the circumstances and whether he convinces the court as to whether he should have these bank statements or not and whether you were reasonable or not in withholding them, as to whether the court would order you to pay the costs or expect him to pay his own.

Any claimant will generally ask the court for an order for costs but it’s up to the court whether it makes the order or not.

Customer: replied 10 months ago.
1.How can we get to know if uses my best friend's ID electronically?
2.What can be done to prevent any conspiracy that can be done by him?
3.In how many day's can they get a court order to release my bank statements?
4.What would be the cost for them for getting a court order to release my bank statements?
5.Can i ask them to bear the cost of the bank statements that my bank would charge me?
Customer: replied 10 months ago.
If the brother uses the best friends ID electronically, it is a breach of the terms of the Computer Misuse Act which is a police matter.
Can you please explain this to me again?
Customer: replied 10 months ago.
My best friend married her husband almost a year prior to her death. Her husband died few days after the marriage. My best friend was partner with her husband for 25 years before the marriage. After the husband's death she sold her husband's Flat and purchased a new flat from the money which she got after selling the husband's flat. We have marriage certificate.
Can her brother still challenge the will?
Customer: replied 10 months ago.
Sir,please reply.
Expert:  F E Smith replied 10 months ago.

{C}1 it depends how ID is being used as to how you would be able to find out.

{C}2 You would deal with this as part of any court proceedings which they bring against you or you bring against them. If you know what a person is doing, you can get an injunction to prevent it carrying on. Without knowing exactly what type of conspiracy you’re thinking about, it’s very difficult to expand the answer.

{C}3 It would be weeks in all probability not days or months.

{C}4 Because you don’t have to release them, it would be up to the judge to decide whether to award costs against you in their favour. Would depend whether it was a reasonable for you to release them. It would not be unreasonablefor you to ask them to pay the banks charges for getting copies if you don’t already have them.

{C}5 Please see 4 above

If a person accesses someone else’s computer or email account or mobile phone or landline messages or account and does so without authority, then it’s a criminal offence under the Computer Misuse Act. In my opinion, that would include any electronic ID.

It would be very difficult to challenge a will for a couple who had been together for 25 years and then only got married shortly before death depending on when the will was written.

Because of the length and age of the thread, I no longer get notifications you are waiting. Hence, the delay for which I apologise.

Customer: replied 10 months ago.
My best friend and her husband stayed in a house.
After the death of her husband,She then sold that house and bought a new house from that money of lesser value.
She bought that new house in June and she died in October year 2014.
She made her will 6 days prior to her death.
In this situation, the money with which she bought the new house was by selling the husband house i.e. husband money.
Can her brother still challenge the will in this situation?
Expert:  F E Smith replied 10 months ago.

He wasn’t dependent and wasn’t a childso doesn’t have a claim under 1.

He wasn’t promised anything so not 5

There is no allegation of fraud so not 3

And hence it just comes down to undue influence or lack of mental capacity.

As solicitors drafted the will and witnessed it, I think his claim is going to be very difficult to bring under either undue influence or mental capacity. We have already covered this.

What you want to know is whether he will bring a claim or not and whether it would be successful. I don’t know whether he will but I can’t see being successful. These claims are extremely risky and expensive.

Customer: replied 10 months ago.
My bank statement shows that on 01/06/2013 i deposited a total of 3 cheques of 10 GBP each.
So it comes to 30 GBP in total.
The bank statement reads it as 30 GBP on that date and only one entry of 30 GBP.
Bank is not giving me separate transaction for it.
If i want then they are charging me heavy,separately.
My best friend paid me only 10 GBP which i have deposited.
How to give my bank statement to her brother showing only her sister payment of 10 GBP?
Customer: replied 10 months ago.
Can i blank 30 GBP and write 10 GBP by myself and sign it?
Will it be okay?
I have to apply to the bank for the bank statement and they charge me for each year statement?Can i ask them to bear the cost of it?
I shall given them the bank statement of how many years?
They are asking me to given the bank statement of the last years.
Expert:  F E Smith replied 10 months ago.

The last 2 years bank statements is not unreasonable.

I have already covered issue of asking them to pay the cost charged by the bank.

If you had various cheques of £10 each from your friend, I can’t see what the problem is with those. Certainly, it’s not worth the brother contesting those payments.

I would not blank out the £30, I would market in ink, 3 x £10. Let them query it.

Customer: replied 10 months ago.
Whom shall i inform when her brother is using my best friends id when she is dead?
Can i get an injunction when her brother is seeing my email to my best friend and is trying to use it as an evidence against me in regards ***** ***** estate after the my best friends death?
How much would an injunction cost?
After the death of my best friend her brother has sent me the emails between me and my best friend of last 5 years and tried to pressure me on the ground of email.
He is still trying to pressurize me on the ground of email.
I want to stop it.
What can i do for it?
Customer: replied 10 months ago.
What is legal authority?According to Weber, there are three types of legitimate authority. The validity of their claims may be respectively based on: rational authority, traditional authority, and charismatic authority. In the case of this organization, our primary concern is on rational authority.Can you please explain whether a Solicitor and an executor fall under this?
Customer: replied 10 months ago.
https://en.wikipedia.org/wiki/Tripartite_classification_of_authorityCan you please explain this too?
Customer: replied 10 months ago.
Sir,please reply.
Expert:  F E Smith replied 10 months ago.

Because of the length and the age of this thread, I’ll longer get notifications that you are waiting. Hence, the delay in getting back to you.

It depends why the brother is using the ID. It is probably a police matter. If the police aren’t interested, then you have no legal interest or standing in the matter.

If the brother is the executor of your best friends estate, he is entitled to see the emails.

An injunction application court fee is £255. Solicitors, if you are not doing it yourself, would cost probably another thousand pounds on top of that. If he defends the application, the court costs if you lose would probably be £5000 and possibly more.

If he is pressing you, pressing you, pressing you, pressing you, to do something, that is harassment and you are entitled to protection from harassment under the Protection From Harassment Act. That is a police matter. He either has to issue legal proceedings against you for whatever reason or leave you alone.

I can’t see the relevance of the essay that you were quoting about authority. I just don’t know where that fits into the equation.

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