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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 11253
Experience:  I have been practising for 30 years.
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Sorry wrong question - I guess I will not be sued in civil

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Sorry wrong question - I guess I will not be sued in civil court because I am accounting to them for all funds including providing them with copies of bank and other statements. My question is have I committed "fraud by abuse of position" FA 2016 clause 4, by intermingling my mothers funds with mine and drawing funds from my mothers accounts without reconciling the figures at the time of drawing funds. As stated previously, I will pay the other beneficiaries their full share with interest on the funds for the time they were not in my mothers account.
Customer: replied 7 days ago.
In the above question it should read "Fraud Act 2006 clause 4. Thanks.

The only time that you could be taken to task over this would be if you had money which you shouldn’t have done and then there is a potential criminal case if there was dishonesty or a civil case if it wasn’t dishonest you have money which you shouldn’t have.

The fact that the money was in your account rather than a separate account is not good practice but provided you could account for it all, there shouldn’t be a problem certainly, not a problem that would get you in a criminal or civil court.

You only commit fraud if someone has been disadvantaged.

There is no requirement for you to reconcile figures at the time provided you reconcile them eventually and providing the reconciliation is accepted as being accurate.

Based upon what you’ve told me, I wouldn’t worrying about anything but there’s nothing to stop your sisters jumping up and down but provided there is no loss of money, they have no complaint or claim to make.

Can I clarify anything else for you?

I am happy to answer any specific points arising from this.

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Thank you.

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

Best wishes.

FES

Customer: replied 7 days ago.
One other point. The day after the funeral, I provided my sisters with an estimate of their share which was very far below what will be their final share. I did not properly consider my past way of running Mum's money. As probate is not applied for and about 10 days later I sent them cheques for a figure about 10 times my previous incorrect estimate, presumably your advice still stands?

It does.

Theft is defined as:

1 the dishonest

2 appropriation of property (includes money)

3 belonging to another

4 with the intention of permanently depriving.

You weren’t acting dishonestly.

Fraud is defined as a full representation by means of a statement or conduct made knowingly or recklessly in order to gain a material advantage.

Your circumstances don’t fit that definition either.

What is extremely relevant here is whether there was any dishonesty and whether there was any loss or disadvantage to anyone.. I think there may have been some naïveté but no dishonesty and no loss.

Whilst your sisters may whinge and moan and jump up and down, and whilst they could go to the police, they actually have nothing to complain about so I cannot see how it could possibly go any further.

Before you go (you can come back here at any time as the thread stays open), please do not 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, and we can still exchange emails.

Kind regards.

FES

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Customer: replied 7 days ago.
Thank you for your reply. Is there a possibility that the other beneficiaries could say that I was acting dishonestly and that I decided to reconcile this at the 11th hour and to rectify the situation?

There is a possibility that they can make a whole raft of different accusations but it’s not something which in all honesty I think would hold any water. People are “late” filing accounts and doing things like this all the time. It doesn’t mean that they were doing things that were dodgy in the interim and then decided to put it right.

In any event even though the reconciliation may only be done at the 11th hour, there is a trail which can be followed in the interim from which anyone could see that you had not been taking out massive chunks of money only to return it just prior to the reconciliation. If that were the case, it’s potentially a different issue.

Customer: replied 6 days ago.
Thanks for your advice. I was a little confused by your final paragraph. What transpired in my situation, was when I sold Mum’s house those funds were credited directly to my account. Mum had three term deposits with building societies and when they matured, they were credited directly to my account.Also, just to clarify, the cheques I have recently sent to my sisters, which hopefully represent their share of most of Mum’s estate, were drawn on my personal account.I think I may not have told you I ran an Excel spreadsheet for expenses only and this was kept up to date as I went along. It only dealt with expenses but it was maintained weekly.Look forward to receiving your additional advice with these additional facts.
Customer: replied 6 days ago.
Would the Excel spreadsheet for expenses, maintained throughout, be good evidence that no dishonesty was intended albeit it only dealt with expenses and did not reconcile Mum’s total funds?

What I was getting at in my final paragraph was that there is dishonesty if for example all this money was transferred into your account and you spent it on drinking, gambling, holidays and fast cars and then, suspecting that you may get found out, you replaced it all before doing the reconciliation.

I’m exaggerating to prove the point but rectifying the situation doesn’t take away dishonesty if there was dishonesty but from what you have said, you haven’t done that.

As I said earlier, although it’s not good practice to have all the money in your personal account (for all the reasons that you are asking the question) there is no legal reason why it can’t.

The Excel spreadsheet of outgoings would certainly assist in showing that you were transparent with this and it would perhaps potentially raise the question as to why you didn’t do it with the income.

Seriously, I cannot see how anyone could allege dishonesty here. You may not have handled it very well, but that’s a different issue altogether and doesn’t give rise for any criminal or civil proceedings.

Customer: replied 19 hours ago.
Somewhat belatedly, my sisters have now banked the large cheques I sent them on account of Mum's estate; which should represent the bulk of her estate. I suspect that they took advice and once they had an opinion that I had not committed dishonesty, they banked the cheques. Do you think that their banking of the cheques means that no criminal case is likely?

If the sister has hung onto the cheque for a protracted period of time and particularly if it was for a large sum, it would certainly seem that she has reconciled herself to the fact that you actually haven’t done anything wrong. I can’t see why she should hang onto the cheque but she may have thought that it was “useful” in some way if she thought you had been dishonest.

I think your suspicion that she has taken some advice and been told that there is no dishonesty just because you used your own bank account to process these funds is probably quite accurate.