How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask F E Smith Your Own Question
F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10487
Experience:  I have been practising for 30 years.
18203470
Type Your Law Question Here...
F E Smith is online now

I need a UK probate specialist please: My query requires

This answer was rated:

I need a UK probate specialist please:My query requires some background info which I have attempted to summarise below:
• My mother passed away in Aug 2016: she appointed all 3 of her children as executors
• I have fallen out with my 2 siblings and they have combined against me
• I obtained Grant of Probate in my sole name in Aug 2017
• By Oct 2017 I had opened an Executor Bank A/c and had arranged for all proceeds from the sale of mum’s investments and bank accounts balances to be transferred to that account. (Total approx. £225k)
• I then paid out bequests to named beneficiaries as per my mother’s will and this left a balance of approx. £165k.
• I then decided to make an initial payment to each of the 3 executors of £50k. My brother is in the USA so I sent him an email on Oct 4th 2017 asking how he would like to receive the funds, i.e. in GBP or USD, by cheque / draft / bank transfer. I told him if he didn’t respond by a specific date/time then he would receive a USD draft.
• His only response was to get their solicitor to write to me on Oct 5th 2017 threatening to take me to court and have me removed as Executor.
• So, I then obtained the USD draft for him (GBP 50k => USD 65k): at this point, the money left the Exec Bank account. I emailed my siblings on Nov 3rd 2017 to tell them both that their payments were on the way in the mail and I sent them a spreadsheet with all the information about funds received in the Exec bank account and the payments made from the bank account (with all supporting docs), obviously including the payments being made to them.
• I heard nothing from either of them after this email re the distributions and I confirmed that all payments to beneficiaries other than my brother had been presented at the bank. I assumed that my brother had received his draft and had paid it into his bank account as he did not tell me otherwise. I could not tell this from the bank statement as the funds left the account when the draft was produced.
• In Jan this year I thought I would check about my brother’s draft and Lloyds Bank informed me that it had not been presented by the payee. The ‘Track & Trace’ I had on the letter was useless: I could see that it had arrived at NY airport on Nov 9th but there was no info after that on line and the company had no clue where it was and were unwilling to do anything about it due to the time elapsed despite me informing them that it was urgent and important.
• Lloyds have now cancelled the draft so that it could not be presented at a bank if someone found it in the US. They are now holding the USD amount ($65k) and are offering to directly transfer that to my brother’s account as, if it were paid back into the GBP account, it would only amount to £46k.
• My brother is saying that it is my fault that he has not received the draft and that I am personally liable for the exchange rate loss. So, what he wants to happen is for the draft to be returned to the GBP account, I make a payment into the account to cover the exchange rate loss and he then gets a GBP cheque for £50k.
• I believe it is his fault as he chose not to respond to my request that he tell me how he wanted to be paid & then he knew the USD draft was on its way at the beginning of November and he chose not to notify me that it had not arrived: the first time he mentioned this was in an email from their solicitor dated April 3, 2018, i.e. exactly 5 months after I had informed him it was on its way.
• This is now causing a total stalemate in finalising my mother’s estate. (We still need to put her house on the market. I did this initially in Jan 2018 but then my siblings obtained double probate and insisted on the house being removed from the market and have not yet agreed when it will go back on the market.) How can I get this situation resolved without me having to pay for something that is not my fault?

Hello for clarification - so this cheque/draft was somehow lost in transit?

and was paid out of a Lloyds account?

what is the Track and Trace? who is accountable?

Customer: replied 9 days ago.
the draft has either been lost in transit or it was delivered to my brother and, for whatever reason, he has decided not to present it and to deny that he has it. If it was delivered, either UPS left it at his address without getting the required signature or they did not update their records to prove delivery had been made.
Yes the executor account is held at Lloyds so I arranged with them for a draft to be created for the USD equivalent of the GBP. When the draft is created, the funds are taken from the Lloyds account and are passed to their 'clearing' bank in the US. The funds sit there until the payee presents the draft at their bank at which point the funds are transferred to their account.
Customer: replied 9 days ago.
Re the Track & Trace: this is the method of tracking a letter posted in the UK to its destination in the USA. I have a tracking number and can look it up on UPS's website. I haven't read the small print but I imagine that UPS will have disclaimed any responsibility for loss.
Customer: replied 9 days ago.
This is the response I received from UPS to my request for information:
This responds to your inquiry to the Consumer Advocate concerning an international parcel you sent to the United States.I was disappointed to learn your letter did not arrive at its destination. However, because so much time has passed since its mailing, and the search initiated by your inquiry has been unsuccessful in locating the missing item, we must reluctantly conclude that it is irretrievably lost.Please know the exchange of international mail is governed by the Convention of the Universal Postal Union (UPU) and the Postal Parcels Agreement, to which all member countries, are signatories. The Convention and the Agreement set forth the methods of exchange, the inquiry procedures, the limits of liability, the determination of responsibility, and the payment of indemnity for international mail articles.Per UPU regulations, inquiries on articles mailed to international destinations may be filed by the sender or the addressee with their own postal administrations. To file an inquiry on an article mailed to the United States, please contact your postal administration to file an inquiry.Thank you for contacting the US Postal Service.Sincerely,Cornell GraysonUSPS HeadquartersOffice of Consumer AdvocateCustomer Experience Specialist
***@******.***
(###) ###-####
Customer: replied 9 days ago.
In case the Royal Mail is responsible for this, their website states: "There are restrictions to sending cash to some destinations. The maximum compensation available for loss or damage to cash, securities or instruments to the bearer is £100."
Customer: replied 9 days ago.
Royal Mail also states: "No Consequential Loss is available.
Certificate of posting required and claims must be submitted within 6 months of posting."
I have the receipt for the postage but it is now 6 months and 1 week since it was posted.

There is already caselaw on this and the exchange rate loss is not a reasonably foreseeable consequence of any delay assuming that you were responsible for the delay!

At this stage, I have to ask a question and that is, is your brother financially quite well off and the reason I ask that is because it could well be the point that he has done this on purpose to get at you if there has been a falling out. He will know using the tracking system whether it shows that he received it and just because there is no signature doesn’t necessarily mean that it hasn’t been received by him. Unlikely but possible.

If you refused your request for him to give you his bank details, and he has relied on snail mail, but in my opinion, he has been the author of his own financial misfortune.

There is obviously no problem giving him a pounds Sterling cheque for the amount of money but with regard to the exchange rate, I do not believe that you have any liability for the reasons I mentioned.

As this has caused the stalemate, you can tell the other beneficiaries exactly why you are now not able to finalise the estate although to be honest, I think you can finalise it because any claim which he has in respect of the sustained rate loss would come down to you personally not the estate. Having said that, I still don’t believe that there is any liability here.

I am writing this as I read your writings and I see that in your second response, you now make the point that for whatever reason your brother did receive it but decided not to present it. It’s interesting that we both come up with the same point, quite independently.

There is no consequential loss claim against the carrier although I don’t think there’s a consequential loss claim here at all.

Can I clarify anything else for you?

I’m happy to answer any specific points arising from this.

Please take a moment to look at the top right hand corner of the page and rate my service by clicking one of the stars at the top of the screen. It’s important you use the rating service because that gives me credit. It doesn’t just give me a pat on the head! (Although there is an incentive scheme where the more five-star ratings I get, I do actually get a pat on the head! :-)) All you need to do is press Submit. Thank you.

If you still need any point clarifying, I will still reply because the thread does not close.

Best wishes.

FES.

Customer: replied 7 days ago.
Thanks for your response.
What I really need are succinct points that I can send to my siblings’ solicitor to let her (& my siblings) know that I understand the legal situation, i.e. that my brother has no legal grounds to expect me to cover the exchange rate loss & that he must bear this himself. Unless I can provide information that is provable (e.g. a reference to the case you mention, etc.) then they will not accept what I say & there is no way that the 3 of us will be able to move on with the finalisation of the estate, hence the reason for my contacting this website.
I have already (multiple times!) restated the steps I took before sending his payment but they will not desist with their assertions that I am responsible for this loss - so now I need some ‘legalese’ to finally convince them.
Was the case you mentioned a probate situation, i.e. was it an executor making the payment & being challenged by a fellow executor?
Are you able please to provide the required summary?

If you want to start researching legal precedent and case law, then it’s going to cost you a lot of money and therefore, you tell him that it’s not recoverable and ask him for some competent legal authority that tells him that the exchange rate loss is a reasonably foreseeable consequence and that it was within the contemplation of the parties. Let him do that research and then you deal with it. Researching extensive caselaw is beyond the scope of this website and barristers charge about £350 per hour for it. Plus VAT. An advice on this view to wave in front of your brother is going to cost about £800 plus VAT although it is recoverable as an expense from the estate.

I can’t remember the details of the case that I mentioned, it was six or seven years ago now, I just remember the exchange rate not being a reasonably foreseeable consequence. It is all down to reasonable foreseeability. That’s a well established doctrine used in hundreds of pieces of case law

Customer: replied 7 days ago.
Ok - understood! Thanks for your assistance.

I am glad to help.

Before you go (you can come back at any time), please don’t forget to use the rating service because that gives me credit. It doesn’t just give me a pat on the head! The thread remains open. We can still exchange emails.

Kind regards.

FES

F E Smith and other Law Specialists are ready to help you
Customer: replied 7 days ago.
Will do! I may well get back to you - depends how the siblings react when I try your suggestion later today! Thanks very much.
Best regards
Sue