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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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My Brother in Law (BIL) has just replied to my request for

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Hi, its me again.My Brother in Law (BIL) has just replied to my request for the email from the venue of the wake which he says proves the payment was legitimate - said for the third time.Attached to another explosive email in which he calls me everything under the sun and says it is all my fault, was the email - in which the venue Manager says 'i can confirm the receipts are from Soranos and the bill was paid to Soranos.' So no confirmation of legitimacy (or really anything but the obvious) there at all.So, i have written to him to say the same and that i am now going to apply to strike claim and defence to cc out etc.1) you mentioned before that he hasn't sued the right defendent - should be execs of....
On the HMRC cpr rules it says that if probate HAS been granted then the defendent should be me personally. (Execs of if no probate) Am i reading this right?2) On his defence, last line, he says "this is an estate debt not a contractual dispute" Is he correct here? I thought any debt where someone owed money was contractual - but a valid contract may not exist in the circumstances.This line (if he has sued wrong defendent) shows he knew it should have been 'execs of' and is targetting me personally on purpose.3) Also, his entire defence says:
In respect of the CC filed, I deny and dispute each and every one of the allegations in the points raised. I dispute that any of my actions have caused any loss or injury to the defendant or have i caused her any loss of earnings attributable from my actions.I beleive this is a bare denial. So, after mentioning the bank withdrawal a significant amount of times in correspondence and, more importantly, in my court papers (it is referred to 8 times) if he hasn't put his side of the story forward - he had admitted the bank withdrawal allegation. Is this correct?BUT he has since admitted there was no withdrawal. So this is provable dishonesty between his two different stances. Is this correct?His latest email says he has got witnesses, proof of what he did that morning and trying everything to rubbish my account of what he said. I beleive it is TOO late to be saying all this - he should have put it in his defence!Finally, he is asking for 20 years of medical records. Is this usual or another example of spite towards me?Thanks so much. Look forward to your comments.Kind regardsDenise

to clarify - this was meant for me? FES Smith?

Customer: replied 5 months ago.
Hiya, it’s me Denise. I am the poor unfortunate one with the brother in law and sister who defrauded my mum and being investigated by police etc? Remember? Money laundering at mums funeral? Saying he withdrew the money from bank and then after threatening specific disclosure, he had to admit he hadn’t withdrawn the the money from the bank.Ringing bells for you?Kind regardsDenise
Customer: replied 5 months ago.
Hi, just added a comment to our last question so you can link that and this one together. Hope this all comes flooding back to you soon!Kind regardsDenise

In my opinion, this is an estate debt because testamentary and funeral expenses on a charge on the estate and the executors deal with the estate. It is the estate that owes the money.

What he would do however sue the estate and ask the court to award costs against you personally because you are the one that is refusing to refund the money.

It is remarkable that he is going to such great lengths to avoid saying where this money came from which he paid over in which he now wants reimbursed.

I can’t think why he wants 20 years of medical records and you are entitled to ask why he wants them.

Customer: replied 5 months ago.
Hi. Thanks for the great reply again.Ok, so just to clarify, the £1031 for wake is owed by the estate - extra costs could be owed by me. He sued me personally for all of it. This when he knew it was estate debt as he put that very wording in his defence. Does this show mailice or did he choose to sue me so that the costs did not deplete the estate - his wife's inheritance?So, he has sued wrong defenant, and i can use two bases for strike out of his claim:Abuse of process for criminality/not telling the court the reason why this money has so far not been repaid and for poor behaviour;And second base is he is unlikely to succeed as sued the wrong defendant.Then as for his defence to my cc - he submitted a blanket denial which means he admitted my allegations (re the bank withdrawal which is central to my case) and now he has only just admitted the money did not come from the bank - so his case fails on - not likely to win and abuse of process for not respecting the process and making a reasonable effort to state his defence.I would also have to state why this application comes so close to hearing (28/2/20) in that he has only just admitted no withdrawal last week and this (i think) blows his defence. And get entire claim/defence struck out.So i fill N244 form for both applications and part of the defence one is to issue summary judgement for my claim and send to trial hearing location. If i have to go to court i will of course but for what was i think you said £100 i feel i have nothing to lose.If you could just confirm i have understood your comments, i will now get on withthis and see what happens.Kind regardsDenise

I think he was trying to intimidate you.

As I said earlier, funeral expenses is a charge on the estate and of the estate hasn’t paid the expenses, then it is the estate that gets taken to court.

However if one of the executors is being obstructive, and legal costs are involved (unlikely in the Small Claims Court) and beneficiaries are going to be disadvantaged because of thousands and thousands of pounds of legal costs, the court can award costs against the obstructive executors personally.

However any such action would normally be brought by disadvantaged beneficiaries if they feel that the executors had entered into litigation needlessly.

You can always submit your defence that you are not the correct defendant here. You don’t owe money personally, the estate does. However if that succeeded, he would just reissue against the estate.

N244 is for any application within existing proceedings.

From memory, this case is about him paying the funeral with dodgy money or what you suspect is dodgy money and then wanting it back into his bank account which could in effect be money-laundering? Is my recollection correct?

Then, he said he took the money out of the bank but wouldn’t produce proof of that and then at the eleventh hour decided he had not taken the money out of the bank. Is that correct?

If this is dodgy money, I think he is skating on very thin ice.

Customer: replied 5 months ago.
Hi, yes, you have got it all spot on. Dodgy money all round!I have also read that an executor cannot really be personally liable if their conduct is due to a 'reasonable explanation' and in the best interests of the estate. I think i tick both boxes there - not using the money to go the channel islands - excuse the pun!
And, no instruction from the highest force in the land - the police.I agree with your comment about his just being able to amend his particulars to the right defendant so if added that as a little extra bit of weight to the criminality etc, they cannot ignore that part and just allow his to change pleadings.I always try to add a little bit more to really hit home the point.One final point is if for my evidence here i need to show some police invovlement (i have and email from the NFIB stating it has been handed over to South Wales Police) but how to i include things that my BIL cannot see - as per instructions from police? Can i say to court, i have it, ask me seprately for it and i will supply or can i trust the court to ensure they do not send it to him?Thanks so much.Kind regardsDenise

You are correct, the executor is not personally liable if the conduct was reasonable.

You cannot use evidence that you cannot show!

You have to produce all the documentation that you intend to rely on. You have to do that at least a couple of weeks before the court hearing.

F E Smith and other Law Specialists are ready to help you
Customer: replied 5 months ago.
That’s brilliant thanks. First class service as usual. Will rate and review as normal. Will keep you posted on developments.Kind regardsDenise
Customer: replied 5 months ago.
Hi, just received an explosive email from bil which gives us even more damning info (one comment proves our claim of one of the instances of insurance fraud!) this email comes in response to my strike out letter.So I am going to send you another question but just forewarning you first on this thread.Thanks very much.Kind regardsDenise

Thank you. Please put my name at the top of the thread, “For FES only” and also request me because then it will go to anybody else and it won’t get missed.