Solicitor for 117 Application, threatens Beneficiaries with High Court

[o'grainne]

Hi all hoping you may be able to help,

My father died leaving a valid will. Joint property automatically went to my mother and did not fall into the will. The rest, some money and personal effects was divided equally between my mother and four adult children.

My father had an adult son from another relationship who was not mentioned in the will and he has filed a section 117 application.
He (son) is not happy with the amount that my father left in his will (thinks there should be more i.e property) and his solicitor has written to us the beneficiaries on the Doctrine of Tracing, requesting any information we have on any properties that my father may have disposed of in his lifetime.

If we do not reply with full disclosure he reserves the right to apply to the High Court for an order of Discovery plus costs.

My query is,

1. is this correct protocol for his solicitor to contact the beneficiaries this way, should all queries not be sent to the executor who is himself a solicitor and who has been served the 117 summons?
   
2. do we have to reply to this letter, I think it is a fishing exercise.

We feel very threatened it and my elderly mother is upset at the thought of being hauled to the High Court.

Thanks in advance.

 

[Neg Covenant]

As far as I know the costs of a S.117 application generally come out of the estate win lose or draw so it is worth settling these matters. The costs of discovery could be substantial. Is the executor a family member? The beneficiaries should consult a solicitor. If the executor is acting for himself then it may be most efficient to consult him. If he has another solicitor acting form him then you might talk to him. Otherwise the beneficiaries should get together and fork out for a solicitor to advise them as beneficiaries. Either way, if the beneficiaries are in receipt of direct correspondence, then the beneficiaries need advice given to them as beneficiaries (rather than just being kept informed by the executor). The advising solicitor should be furnished with all the letters and asked to give written advice. This really sounds like a case which should be nipped in the bud if possible. This may mean handing over money to the person making the claim.

 

[o'grainne]

Many thanks for the reply.

The Executor is not a family member; he was my late father’s solicitor.

We do realise that 117 costs come out of the estate of the deceased.

Yes we the beneficiaries have each received direct correspondence from the solicitor of the person claiming the 117. I see your point about contacting a solicitor, but I still do not understand why the beneficiaries should have to. We have no knowledge of my late father’s business, what’s left is his will, it speaks from the grave and that is what the executor has to work with and anyone else who receives a copy.

Who pays the costs of discovery, the estate perhaps but not the beneficiaries?
If there are costs involved in a 117 then it is the named beneficiaries who loose out of their share of the estate, but they shouldn’t be threatened for information that someone thinks may be out there.

 

[Neg Covenant]

Many thanks for the reply.

The Executor is not a family member; he was my late father’s solicitor.

We do realise that 117 costs come out of the estate of the deceased.

Yes we the beneficiaries have each received direct correspondence from the solicitor of the person claiming the 117. I see your point about contacting a solicitor, but I still do not understand why the beneficiaries should have to. We have no knowledge of my late father’s business, what’s left is his will, it speaks from the grave and that is what the executor has to work with and anyone else who receives a copy.

Who pays the costs of discovery, the estate perhaps but not the beneficiaries?
If there are costs involved in a 117 then it is the named beneficiaries who loose out of their share of the estate, but they shouldn’t be threatened for information that someone thinks may be out there.

A S.117 application is because the deceased did not make proper provision for a child. Assets not referred to in the will are relevant. If you know about such assets and are unwilling to disclose them then the Courts may well take a dim view of your actions.

You have expressed opinions about discovery and whether you think you should be threatened. However, it is the law that counts so you need a solicitor's advice as to the exposure for individiual beneficiaries.

Also, unless the beneficiaries are trying to hide pre-death gifts and/or assets outside the will, then they should be trying to be straight up to get the matter sorted. If I were the other child and you ignored me then I would be encouraged to fight it further.

 

[o'grainne]

As stated we have we have no knowledge of my late father’s business affairs and that is what we shall tell the solicitor acting for the person claiming the Section 117.

Again many thanks for the reply.