News2 mins ago
Executors in Disagreement
Further to my questions the other evening when I was helped by Buenico and Barmaid (could you help again). Myself and the other Executor are in disagreement on how to handle the situation. What are our responsibilities. The other Executor wishes to pay the amount requested by the person claiming against the Estate. I wish to make a lower offer and if this is not accepted allow the claimant to submit papers to the court.
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Your duty is to carry out the provisions of the will exactly as your aunt intended. (Only a court of law can vary those instructions). If you do otherwise you will be acting unlawfully.
Of course, if you are a beneficiary of the will you are free to do what you like with your own inheritance (including giving some of it to your late aunt's husband, if you choose to do so) but that's completely separate from your duty to follow the will to the letter (unless, and until, a court varies the provisions of the will).
Chris
PS: I used to write wills for a living and I've got a general interest in the law, so I hope that my answers are always accurate. However Barmaid is a barrister (practising in civil law) so, if our answers ever differ, Barmaid's answers will always take precedence over mine.
Of course, if you are a beneficiary of the will you are free to do what you like with your own inheritance (including giving some of it to your late aunt's husband, if you choose to do so) but that's completely separate from your duty to follow the will to the letter (unless, and until, a court varies the provisions of the will).
Chris
PS: I used to write wills for a living and I've got a general interest in the law, so I hope that my answers are always accurate. However Barmaid is a barrister (practising in civil law) so, if our answers ever differ, Barmaid's answers will always take precedence over mine.
You must ask the beneficiaries for their views. If you get a unanimous agreement (and all of the beneficiaries are of full age, capacity and are ascertained), you can freely settle the claim for whatever the beneficiaries decide. The executors should take a neutral role in an IH claim and agree to abide by any order the court makes - however, this will be different if the executors wear two hats - ie they are both execs and both beneficiaries. Remember that this is essentially a claim against the estate and thus the amounts a beneficiary will receive so it is really them who must make the decision on how much to offer.
If you are both beneficiaries and the other wants to make a higher offer, why not suggest that he pays more than you? There is nothing to say that you each have to pay equal amounts.
As a trustee, you have the power under s15 Trustee Act 1925 to compromise any action. However, this must be read with s1(1) of the Trustee Act 2000 which states that the trustees have a duty of care. Although in terms of compromise (unlike investment) there is no duty per se to take advice, a court would be unlikely to criticise executors who acted on the basis of sound advice and with the agreement of the beneficiaries. What you must not do though is settle the claim without the agreement of the beneficiaries since they should also be defendants if a claim were to issue.
However, if agreement cannot be reached between the beneficiaries I suspect the Claimant will issue Part 8 proceedings for an IH claim so you will already be in a situation where the estate is incurring costs.
Divide and rule is often a tactic used when there are beneficiaries who disagree. Given that you seem to be signed up to the idea of making an offer, I would urge you to take advice as to the appropriate level. If at this stage you can't agree, might I suggest you ALL submit to formal mediation in the hope that you can avoid the
If you are both beneficiaries and the other wants to make a higher offer, why not suggest that he pays more than you? There is nothing to say that you each have to pay equal amounts.
As a trustee, you have the power under s15 Trustee Act 1925 to compromise any action. However, this must be read with s1(1) of the Trustee Act 2000 which states that the trustees have a duty of care. Although in terms of compromise (unlike investment) there is no duty per se to take advice, a court would be unlikely to criticise executors who acted on the basis of sound advice and with the agreement of the beneficiaries. What you must not do though is settle the claim without the agreement of the beneficiaries since they should also be defendants if a claim were to issue.
However, if agreement cannot be reached between the beneficiaries I suspect the Claimant will issue Part 8 proceedings for an IH claim so you will already be in a situation where the estate is incurring costs.
Divide and rule is often a tactic used when there are beneficiaries who disagree. Given that you seem to be signed up to the idea of making an offer, I would urge you to take advice as to the appropriate level. If at this stage you can't agree, might I suggest you ALL submit to formal mediation in the hope that you can avoid the
Barmaid, your help has been invaluable. Thanks for sparing your time. The person claiming against the estate is quite elderly. If he were to pass away during these negotiations would his beneficiaries be able to continue this claim (either before or after papers have been submitted)? Also does the Estate pay ALL the legal costs?
No, his claim dies with him as long as he dies before an order (by consent or otherwise) is made.
The normal rule as to costs is that the loser pays the winner's costs. However, if he loses and has very little means (it is often the case), the estate will inevitably bear the costs. The winning/losing thing is also subject to the court's view on how reasonable the parties have behaved, whether they have followed pre action protocols etc.
I can't comment on the merits, but if he receives anything from the estate, he is classed as having been successful on his claim. Thus you should be very careful as to how offers are made so as to try to give yourselves protection on costs. Your legal advisers should be able to give you more detail on this.
The normal rule as to costs is that the loser pays the winner's costs. However, if he loses and has very little means (it is often the case), the estate will inevitably bear the costs. The winning/losing thing is also subject to the court's view on how reasonable the parties have behaved, whether they have followed pre action protocols etc.
I can't comment on the merits, but if he receives anything from the estate, he is classed as having been successful on his claim. Thus you should be very careful as to how offers are made so as to try to give yourselves protection on costs. Your legal advisers should be able to give you more detail on this.
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