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.
  • Go back-and-forth until satisfied
    Rate the answer you receive.
Ask F E Smith Your Own Question
F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 17604
Experience:  I have been practising for 30 years.
18203470
Type Your Law Question Here...
F E Smith is online now

I was asked to be an executor of my Mother-in-Law's Will.

This answer was rated:

I was asked to be an executor of my Mother-in-Law's Will. She was suffering from Alzheimer's but from the times I saw her she had good and bad days. When the solicitor took the Will he carried out his usual tests to ensure that she had capacity. Her daughter, Jane, was with her in the room. Even so, the solicitor was content that the Will as valid. She was called Alma and died in 2007. The estate is worth approx £100,000.My mother-in-law had two sons and three daughters. My wife Kate, Jane, Sarah, Tim and Nigel. Her two sons were also appointed executors. She had made Will in 2005 splitting her estate equally. She made another in 2006 leaving 40% to Jane (who lived locally and helped her with shopping etc), 30% to my wife who visited her every couple of weeks and 10% to the others who visited her once or twice in about 4 years. The other two executors would not agree to the 2006 Will, and claimed she did not have capacity. Jane was adamant the 2006 Will stand, my wife was happy for either Will and the three other siblings wanted to 2005 Will. We disagreed for several years - the three siblings paid for "expert" medical advice on Alma's capacity to make a Will.In Jan 2012, I renounced my position as executor and from that point in time had no more to do with the matter. My wife and I divorced in 2018. In July 2019, Jane took legal action in the High Court against her siblings and myself stating that we had prevented the 2006 Will from going to probate. I was included as she deemed that the estate had been intermeddled and I could not stand down.I defended myself stating that I had not opposed the 2006 Will and had in fact argued that we take that Will to Probate. I sent a further letter this year with additional facts and suggesting that if there were costs my ex-wife and I should not be liable for these as we never opposed the 2006 Will (or 2005 Will) ad did not agree with the legal action being taken especially as the costs will quickly exceed the value of the estate.A CMC has been called for December 17th this year. My questions: I know that I can produce a short statement for the court. Is this necessary? Is it worth me producing a statement again re-iterating that I do not and never did oppose the 2006 Will, that I believed I was no longer an executor and as such can I be excused from the action or at least protected against costs being applied. I do not stand to benefit from this estate in any way. I can send you the Claim and my two replies f that would help.

Welcome to Just Answer.

I will be happy to assist with your question today. I need sometime to consider this and compose a response. There is NO need to wait online because you will get an email when I respond. Sometimes it will be minutes, sometimes longer.

I apologise for any unavoidable delay, but rest assured I have not forgotten your question.

yes please if you can upload using the paperclip symbol above top left of this box - thanks

F E Smith and other Law Specialists are ready to help you
Customer: replied 16 days ago.
I have attached the Claim and my responses. 002 is the first response 2.1 is the second response. The exhibits are not there - if you would like to see them then let me know.
Customer: replied 16 days ago.
Hi Mr Smith. I realise you may want to read the documents before we speak. I am working from home and free for a call at any time apart from 15:00 - 16:00 when I have a conference call. Many thanks Alec

I said that I would confirm a bit of what we spoke about.

You need to find out how her claim is funded and whether there is the benefit of After the Event Insurance because the concern would be that she’s going into this blindly and she doesn’t have the money to pay the legal costs of you and the others, in the event her claim fails.

If there is no insurance, or they won’t tell you, then you need to make an application to court for an order for Security for Costs which means that she will either have to produce the money or evidence that she has a house or whatever that could be sold to pay the costs.

I mentioned making her a part 36 offer.

I will explain how Part 36 offers work.

You make an offer is Without Prejudice Save as to Costs and then it cannot be produced in court as any kind of admission that you admit or agree anything. The court do not know about the offer.

If the matter goes to court and the other side failed to beat a Part 36 offer then they have to pay all the costs of both sides from the date of the offer onwards.

It works on the basis that if someone has made a reasonable offer and the other side just go blindly to court, and they don’t reap what was already offered, they have wasted the court’s time and they get penalised financially.

The wording of Part 36 offers is extremely important and even solicitors got it wrong for a long time so the government have kindly produced standard form:

https://www.gov.uk/government/publications/form-n242a-notice-of-offer-to-settle-section-1-part-36

You would need to qualify the offer to say that it’s on the understanding that each party pays their own costs because a part 36 offer is usually subject to the paying party paying the other person’s costs.

I said I would also tell you about the correct format for witness statements. You also need Statement of Truth at the end of the witness statement.

Please note that the Statement of Truth at the end of a witness statement has changed. It changed quietly on 6 of April 2020.

Here is the form of witness statement on the government website which at the time of putting the link together, still had the old Statement of Truth.

https://www.justice.gov.uk/courts/procedure-rules/civil/standard-directions/general/witness-statements

Here is the new wording: https://parissmith.co.uk/blog/guidance-signing-statement-of-truth/

No problem at all. I am glad to help. Please come back to me at any time if anything needs clarification. Kind regards.

Customer: replied 16 days ago.
Thank you for the call - that was very useful - and for the documents you have sent through.Just realised that I had one other question. For the CMC on 17th Dec (which is by Skype) is it worth me writing a statement of my understanding - the court has said each party can do this but there is a limit to the amount you can write.This can be submitted no later than three days before the CMC. I'm thinking that I will suggest a Part 36 offer to Jane. I know the others will refuse (apart from my ex-wife). I can then say the other executor refused to do this; that I do not agree with the court action and do not believe that I should be liable to costs as I have wanted this settled from the start. Does this sound reasonable?

You can always do a Position Statement.

You don’t suggest a part 36 offer, you just make it, but you can only do that with the others.

What you can do however is tell the others of all the costs risk if they don’t agree, you will be bringing this correspondence to the attention of the court that it’s all their fault and you will be asking all the costs to be awarded against them.

It’s unfortunate that you have a three-way fight.

Customer: replied 3 days ago.
Hello, Mr Smith. I have the CMC coming up and I reached out to the two executors and a beneficiary to see if we could work together on the DQs, directions etc that the court requires. I received the following back:"We are independent parties when it comes to settling the claim. Parties would also be responsible for their own costs of ADR which are paid, for example, when the mediator is appointed.
You are no longer an executor nor are you or have you ever been a beneficiary. It might be helpful to understand why Jane is suing you; that is your position at mediation not for example, which Will is the subject of the ADR.
It appears that you do not fully understand the proceedings, however, we wish to put you on notice that if you prove to be an obstruction to a potential resolution between the executors (myself and Nigel) and beneficiaries (who are the only concerned parties in this matter) then all parties will most likely look to you for recovery of otherwise unnecessarily incurred costs."I don't know what you think of this, but it seems to me to be a veiled threat that if I discuss at ADR (or in court I presume) anything other than why I am a defendant that I may be liable to costs. Can I write to the judge to ask his advice? What I really want is to be released from the case - I can gain nothing in this case but I am liable to lose a lot in costs. Where is the reciprocity?

I apologise for the delay in getting back to you. As the thread is now 2 weeks old, I no longer get notification that you are waiting. Hence, unless I happen to spot it or somebody mentions it, you are going to be waiting. Apologies, it’s just the way the system works.

If you are no longer an executor order beneficiary, because you renounced, then I cannot see why you are not just walking away from this.

Customer: replied 3 days ago.
Because the executors stopped the bank accounts thereby intermeddling with the estate. The Deceased's flat had to be cleared and cleaned. The Claimant suggested that the beneficiaries take anything they liked and that she would have the flat cleared of the remainder. We executors agreed to this as there was nothing of any great value.I have been told that this means I intermeddled and thus could not renounce - even though the "probate specialist" (taken on by the other two executors) advised to the contrary and sent me the renunciation form.If you believe that the executors actions did not amount to intermeddling then I will be much relieved and do what you have suggested.
Customer: replied 3 days ago.
You told me that it would not inform you of my subsequent questions but that you check every couple of days so I wasn't expecting an immediate response. Cheers!!

You did indeed intermeddle. You have not got to do very much to intermeddle.

However you can still renounce and be replaced but it needs a court order and the magic rubberstamp.

Customer: replied 2 day ago.
I had an email from one of the executors saying this:"We are independent parties when it comes to settling the claim. Parties would also be responsible for their own costs of ADR which are paid, for example, when the mediator is appointed.You are no longer an executor nor are you or have you ever been a beneficiary. It might be helpful to understand why Jane is suing you; that is your position at mediation not for example, which Will is the subject of the ADR.It appears that you do not fully understand the proceedings, however, we wish to put you on notice that if you prove to be an obstruction to a potential resolution between the executors (myself and Nigel) and beneficiaries (who are the only concerned parties in this matter) then all parties will most likely look to you for recovery of otherwise unnecessarily incurred costs."Can that be classed as a threat? Should I send it to the court? Thanks
Customer: replied 2 day ago.
Would another phone call help?

There is nothing particularly untoward about what they are saying although I’m not certain what Jane is trying to do or achieve. Has she actually told you what she wants because from what you have said, she’s querying things without actually being definite about what the alleged problem is.

If you are no longer an executor, then you would only be responsible for any wrongdoings up until the time that you were removed

Customer: replied 2 day ago.
Jane, the claimant, simply wants the last Will to be executed. She would also like her legal fees covered by the defendants.The three siblings together ( 2 executors and 1 beneficary) want the previous Will to be executed and are claiming the Deceased was mentally incompetent - even though the solicitor who took the Will did his usual test which she passed. The now Deceased could also explain to him lucidly why she wanted the Will changed. She wanted the Claimant in the room but according to the solicitors notes, she was sitting behind the Deceased and said nothing at all while the Will was taken. There was also some talk of the Claimant having money from the Deceased before she died but when I challenged the Three for evidence they could not produce anything.I was trying with the Three to offer that we produce draft Directions for the Court together and complete the Direction form. They said I could send my draft ones to them but they want to act independently from me and gave me the warning about not obstructing them by giving evidence about the Wills etc.Can I ask this judge to action my renouncement form from 2009 and excuse me from this case?