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UKSolicitorJA, Solicitor
Category: Law
Satisfied Customers: 4312
Experience:  English solicitor with over 12 years experience
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Christopher is the executor of his brother's will. He can see

Customer Question

Christopher is the executor of his brother's will. He can see from his brother's emails that Howard was lent £50,000 pounds by his deceased brother, and from his brother's bank account that Howard has paid back - in payments of £2000 and £1000 - a total of £24,000. Christopher has had his solicitor write to Howard asking that the remaining debt of £26,000 be acknowledged as still owing but Howard claims that the remaining £26000 was already paid in cash to the deceased brother and,consequently, nothing remains owed.
Can Christopher, as executor, bring an action against Howard remaining £26,000?
Will the burden of proof lie with Howard to show that he made cash payments of the "missing" £26,000?
Have you any advice ?
Christopher has good grounds to suspect that Howard did not repaid the £26000 in cash.
Submitted: 3 years ago.
Category: Law
Expert:  UKSolicitorJA replied 3 years ago.
Yes, Christopher, as executor, has the power to bring court proceedings on behalf of the estate against Howard. Christopher's power to do so is derived from the Will.
The burden of proof is on Christopher to show that Howard has not paid back the £26,000 balance. It is a fundamental principle of law that the claimant bears the burden of proof in a civil claim.
My advice to Christopher is to bring a court claim against Howard on behalf of the estate and claim the £26000 balance and show evidence to the effect that the original debt was £50,000 and that only £24,000 appears to have been paid back which would leave a balance of £26,000 owing to the estate. The burden would then shift to Howard to show that he has indeed paid the £26,000.
If Howard cannot do so, he would be liable to pay back the £26,000.
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