Asking Probate Registry to issue a Summons

[ance...@quintus.org.uk]

An Executor of an Estate I am a Beneficiary of, has ignored several attempts
to obtain an Inventory and Account.

I am about to ask the Probate Registry to issue a Summons requiring them to
do this.

Apart from my own costs (filling out the form and providing a sworn
Affidavit) is the Executor likely to incur any costs and is there any risk
that I might have to pay them?

[Handsome Jack]

ance...@quintus.org.uk posted

What form is this? What kind of summons?

--
Jack

[Peter Crosland]

Has probate been granted? If so AIUI you have to sue the executor not
ask the Probate Office to do it. The executor is likely to be liable for
any costs.


--
Peter Crosland

Reply address is valid

[Robin]

On 29/10/2017 18:58, ance...@quintus.org.uk wrote:

If the executor has completed the administration of the estate then the
accounts should already have been prepared and the only additional cost
will be copying them. If not, the executor may have to do some work to
get them into shape. How much depends on the estate and on how the
accounts have been kept.

Either way I don't think you should face any additional cost if the
court requires the executor to produce them and the executor does so
without further ado. Which is all I've ever known happen.

There must be means for an executor to contest the matter beyond the
initial court hearing in which case I imagine costs might arise. I'd
expect you would have an opportunity to bail out before then by not
pursuing the application but I'm sorry to say I've no idea just what the
process would be for that.

PS
You mention a form. Is there now a probate service form for this or is
it a form you have bought?

--
Robin
reply-to address is (intended to be) valid

[Robin]

On 29/10/2017 22:44, Peter Crosland wrote:
<snip>

>
> Has probate been granted? If so AIUI you have to sue the executor not
> ask the Probate Office to do it.

The NCPR provide in rule 61:

"(2) An application for an inventory and account shall be made by
summons to a registrar"

It is perhaps worth noting that this is an application to a court. The
applicant is asking the court to require the inventory and account under
s.25 Administration of Estates Act 1925 (as amended).

> The executor is likely to be liable for
> any costs.
>

Yes.

[Chris R]

On 30/10/2017 08:16, Robin wrote:
> On 29/10/2017 22:44, Peter Crosland wrote:
> <snip>
>>
>> Has probate been granted? If so AIUI you have to sue the executor not
>> ask the Probate Office to do it.
>
> The NCPR provide in rule 61:
>
> "(2) An application for an inventory and account shall be made by
> summons to a registrar"
>
> It is perhaps worth noting that this is an application to a court.  The
> applicant is asking the court to require the inventory and account under
> s.25 Administration of Estates Act 1925 (as amended).
>
>> The executor is likely to be liable for any costs.
>>

The usual rule in any litigation is that the unsuccessful party is
ordered to pay (most of) the legal costs of the the successful party. So
if the executor defends the proceedings and wins, or the claimant
abandons the proceedings, the likelihood is that the claimant would be
ordered to pay the executor's legal costs - though I know nothing about
this particular court process. Also, unless the court orders otherwise,
the legal costs incurred by the executor will come out of the estate. So
the OP needs to ask for such an order.
--
Chris R

========legalstuff========
I post to be helpful but not claiming any expertise nor intending
anyone to rely on what I say. Nothing I post here will create a
professional relationship or duty of care. I do not provide legal
services to the public. My posts here refer only to English law except
where specified and are subject to the terms (including limitations of
liability) at http://www.clarityincorporatelaw.co.uk/legalstuff.html
======end legalstuff======

[Chris R]

On 30/10/2017 08:57, Chris R wrote:
> On 30/10/2017 08:16, Robin wrote:
>> On 29/10/2017 22:44, Peter Crosland wrote:
>> <snip>
>>>
>>> Has probate been granted? If so AIUI you have to sue the executor not
>>> ask the Probate Office to do it.
>>
>> The NCPR provide in rule 61:
>>
>> "(2) An application for an inventory and account shall be made by
>> summons to a registrar"
>>
>> It is perhaps worth noting that this is an application to a court.
>> The applicant is asking the court to require the inventory and account
>> under s.25 Administration of Estates Act 1925 (as amended).
>>
>>> The executor is likely to be liable for any costs.
>>>
> The usual rule in any litigation is that the unsuccessful party is
> ordered to pay (most of) the legal costs of the the successful party. So
> if the executor defends the proceedings and wins, or the claimant
> abandons the proceedings, the likelihood is that the claimant would be
> ordered to pay the executor's legal costs - though I know nothing about
> this particular court process. Also, unless the court orders otherwise,
> the legal costs incurred by the executor will come out of the estate. So
> the OP needs to ask for such an order.

It is also worth mentioning that costs could be awarded against the OP
if he has failed to follow any relevant pre-action protocol, which is
likely to require him to write a formal letter before action to the
executor.

[Robin]

All good points.

I had assumed wrongly this was a beneficiary facing a reluctant
executor. The OP could certainly face paying the executor's costs if
the executor objects to the making of the order because the OP hadn't
asked for the accounts and given the executor time to provide them; or
because he doesn't have an interest in the estate; or because he has
already had all the information the executor has so any order would be a
waste of time and money.

[Robin]

On 29/10/2017 18:58, ance...@quintus.org.uk wrote:

While a beneficiary has a right to ask the court to order the
information at any time it might help to know the background given Chris
R has reminded me of some of the ways you might end up liable for the
executor's costs. G when was the death, when was probate granted, has
the estate been distributed, are you a residuary beneficiary, and are
solicitors acting?

[ance...@quintus.org.uk]

Probate was granted months ago.

[ance...@quintus.org.uk]

Three letters have been written asking for information - all ignored.

[ance...@quintus.org.uk]

This is indeed "a beneficiary facing a reluctant executor". The last of
three letters - all ignored thus far - gave 14 days to produce.

[ance...@quintus.org.uk]

The form was sent from the Probate Registry. It is just headed: "Summons
Form".
The Summons is to force the Executor to produce Inventory and Account for
the Estate.

[ance...@quintus.org.uk]

The form is from the Probate Registry and headed: " Summons Form".

[Norman Wells]

On 29/10/2017 18:58, ance...@quintus.org.uk wrote:

It depends whether you have a right to see them. What makes you think
you do?

Have you not received what you think you are entitled to?

[ance...@quintus.org.uk]

The death was in May this year and Probate granted in July.

I believe the Estate to have been distributed and that Executor fraud has
taken place.`

As part of the Estate falls outside of Probate and should have been dealt
with under the rules of Intestacy I am a beneficiary.

No Solicitors are acting - yet!

[ance...@quintus.org.uk]

The right of beneficiaries to request information at any time was
established in 1797 (Myddleton & Rushout).

I have not received anything but am entitled to something; I'll know more
when I see the Account.

[Norman Wells]

Because you don't quote anything of the message to which you're
replying, I'm not sure what or whose questions you're answering.

If you are not a residuary beneficiary, which it appears you are not
because you haven't received anything at all, you have no entitlement as
of right to see the executor's accounts.

You should, however, have a copy of the Will. What does it say? What
are you contesting?

[Robin]

On 30/10/2017 16:45, ance...@quintus.org.uk wrote:
> The death was in May this year and Probate granted in July.
>
> I believe the Estate to have been distributed and that Executor fraud has
> taken place.`
>
> As part of the Estate falls outside of Probate and should have been dealt
> with under the rules of Intestacy I am a beneficiary.

Have you had professional assistance in setting out the basis on which
you interpret the will to lead to that result? And put to the Executor
that interpretation?

> No Solicitors are acting - yet!
>

[Norman Wells]

On 30/10/2017 16:45, ance...@quintus.org.uk wrote:

> The death was in May this year and Probate granted in July.
>
> I believe the Estate to have been distributed and that Executor fraud has
> taken place.`
>
> As part of the Estate falls outside of Probate and should have been dealt
> with under the rules of Intestacy I am a beneficiary.

I don't understand. Probate applies to the whole of the deceased's
estate, not just bits of it.

You seem to be alleging that part of the estate has been distributed
wrongly. Why do you think that part should have been dealt with under
the intestacy rules and not how you suspect it has been?

[The Todal]

On 30/10/2017 16:45, ance...@quintus.org.uk wrote:

> The death was in May this year and Probate granted in July.
>
> I believe the Estate to have been distributed and that Executor fraud has
> taken place.`

Oh dear. Your application won't take you very far, then. It would force
the production of an estate account but finding any assets that haven't
been taken into account could be a messy and expensive job. The only
procedure that would actually work would be to apply to a Master in the
Chancery Division for an order appointing a trustee to administer the
estate in place of the existing executor.

Last time I saw that done was many years ago and the trustee charged
hefty fees which came out of the estate money.

I think you'll probably need a solicitor to advise on the best and most
cost-effective way forward. I just hope it can be done without you
personally having to incur a lot of expense.

[The Todal]

On 30/10/2017 19:37, The Todal wrote:
> On 30/10/2017 16:45, ance...@quintus.org.uk wrote:
>> The death was in May this year and Probate granted in July.
>>
>> I believe the Estate to have been distributed and that Executor fraud has
>> taken place.`
>
> Oh dear. Your application won't take you very far, then. It would force
> the production of an estate account but finding any assets that haven't
> been taken into account could be a messy and expensive job. The only
> procedure that would actually work would be to apply to a Master in the
> Chancery Division for an order appointing a trustee to administer the
> estate in place of the existing executor.
>
> Last time I saw that done was many years ago and the trustee charged
> hefty fees which came out of the estate money.
>
> I think you'll probably need a solicitor to advise on the best and most
> cost-effective way forward. I just hope it can be done without you
> personally having to incur a lot of expense.
>

See eg
http://www.stjohnschambers.co.uk/wp-content/uploads/Removal-of-executors-practice-and-procedure.pdf

[Tim Woodall]

Are you sure that just because it falls outside probate it falls under
intestacy?

If anything, I thought it was the other way around - that intestacy
requires probate. But I'm no expert in these matters.

[A Cestry]

On 30/10/2017 16:45, ance...@quintus.org.uk wrote:

> The death was in May this year and Probate granted in July.
>
> I believe the Estate to have been distributed and that Executor fraud has
> taken place.`
>
> As part of the Estate falls outside of Probate and should have been dealt
> with under the rules of Intestacy I am a beneficiary.

Have you had professional assistance in setting out the basis on which
you interpret the will to lead to that result? And put to the Executor
that interpretation?

> No Solicitors are acting - yet!
>

Yes to both questions.

[Tim Jackson]

On Mon, 30 Oct 2017 16:36:48 GMT, ance...@quintus.org.uk wrote...

>
> This is indeed "a beneficiary facing a reluctant executor". The last of
> three letters - all ignored thus far - gave 14 days to produce.

Did it say that you would take court action if they didn't?

--
Tim Jackson
ne...@timjackson.invalid
(Change '.invalid' to '.plus.com' to reply direct)

[ance...@quintus.org.uk]

I'm contesting the distribution.

Part of the Estate is not dealt with by the will and therefore should be
distributed according to the rules of Intestacy. I am a beneficiary under
those rules.

[ance...@quintus.org.uk]

Yes

[ance...@quintus.org.uk]

The will was badly drafted. A Residuary Beneficiary predeceased the Testator
and no provision was made for this so that Beneficiary's share must be

distributed according to the rules of Intestacy.

But this has drifted way off topic which was concerned with costs of issuing
a Summons to produce Inventory and Account.

[Robin]

I don't think so. I think it has revealed that you do risk costs being
awarded against you. Having given you a misleading response with too
little thought (and too much alocohol) I urge you now to pause and
consider the risks and rewards - including whether it is only worth
proceeding if other beneficiaries under the partial intestacy share the
risks.

I say that on the basis that:

a. you say you are only a beneficiary on the basis of the partial intestacy;

b. in order to win the order you have therefore to argue that
interpretation of the will;

c. if you are right about that interpretation and also right that the
executor has distributed the estate then ISTM the only way you (and the
others in your position) are likely to get your money is by proceedings
against the executor personally;

d. that means while in form the hearing is about an inventory and
accounts, in substance the executor has a clear incentive to resist
argue against you, to attend or be represented at the hearing, and if
successful to seek costs against you.

I also think it is unhelpful for you to couch this in terms of fraud by
the executor. You had conflicting advice on the will. For all we know
the executor may have sought professional advice and followed it.

[Roland Perry]

In message <4defc8dc-5b60-2cae...@hotmail.com>, at
09:43:20 on Tue, 31 Oct 2017, Robin <rb...@hotmail.com> remarked:

>a. you say you are only a beneficiary on the basis of the partial intestacy;
>
>b. in order to win the order you have therefore to argue that
>interpretation of the will;
>
>c. if you are right about that interpretation and also right that
>the executor has distributed the estate then ISTM the only way you (and
>the others in your position) are likely to get your money is by
>proceedings against the executor personally;

Until the books have been seen, there's no certainty *how* the executor
acted, or what the sums of money involved are.

Knowing both of those is an essential prerequisite to the possibility of
starting proceedings against the executor.

>d. that means while in form the hearing is about an inventory and
>accounts, in substance the executor has a clear incentive to resist
>argue against you, to attend or be represented at the hearing, and if
>successful to seek costs against you.

To what extent, and on what basis, can the executor resist an
application to "show the books"?

>I also think it is unhelpful for you to couch this in terms of fraud by
>the executor. You had conflicting advice on the will. For all we know
>the executor may have sought professional advice and followed it.

But that professional advice could still have been wrong.

ps I have no view on who is right or wrong, but am merely trying to
clarify the stages in the process.
--
Roland Perry

[Martin Brown]

On 30/10/2017 16:45, ance...@quintus.org.uk wrote:

> The death was in May this year and Probate granted in July.

Relatively quick so a fairly simple estate?

> I believe the Estate to have been distributed and that Executor fraud has
> taken place.`

That is a very serious accusation to make about an Executor. Being an
executor is at best a thankless task involving a great deal of tedious
administration and at worst you face abuse by disgruntled beneficiaries.

>
> As part of the Estate falls outside of Probate and should have been dealt
> with under the rules of Intestacy I am a beneficiary.

Probate is the key for unlocking access to the funds that previously
belonged to the deceased. The executor is then supposed to collect in
those funds, pay the estates various creditors and then distribute the
remainder in accordance with the provisions of the Will.

If the Will is badly constructed then a legal battle may ensue as the
various conflicted parties try to enforce their interpretation.

> No Solicitors are acting - yet!
>

You need paid for advice if you are determined to follow this line of
action. You only have a legitimate claim to see the estate accounts if
you are a beneficiary of the Will and it is that very point which is in
dispute. If you can persuade one of the present beneficiaries to show
you a copy of the estates accounts that might be a simpler way forward.

You can incidentally find the total value by going to the online probate
portal and downloading a copy of the grant of probate summary and will.

You may well find that legal fees will quickly exceed any gain you might
make. You certainly need to be aware of the likely costs and risks.

--
Regards,
Martin Brown

[A Cestry]

On 31/10/2017 09:43, Robin wrote:
> I don't think so.  I think it has revealed that you do risk costs being
> awarded against you.  Having given you a misleading response with too
> little thought (and too much alocohol) I urge you now to pause and
> consider the risks and rewards - including whether it is only worth
> proceeding if other beneficiaries under the partial intestacy share the
> risks.
>
> I say that on the basis that:
>
> a.    you say you are only a beneficiary on the basis of the partial
> intestacy;

Yes

>
> b.    in order to win the order you have therefore to argue that
> interpretation of the will;
>

If I don't get the order then I'll only have the cost of producing the
Affidavit or will I have to pay for the court's time?

> c.    if you are right about that interpretation and also right that the
> executor has distributed the estate then ISTM the only way you (and the
> others in your position) are likely to get your money is by proceedings
> against the executor personally;

Small claims court?

>
> d.    that means while in form the hearing is about an inventory and
> accounts, in substance the executor has a clear incentive to resist
> argue against you, to attend or be represented at the hearing, and if
> successful to seek costs against you.
>
> I also think it is unhelpful for you to couch this in terms of fraud by
> the executor.  You had conflicting advice on the will.  For all we know
> the executor may have sought professional advice and followed it.
>

Noted. Good point.
>

[Robin]

On 31/10/2017 19:35, A Cestry wrote:

>
> If I don't get the order then I'll only have the cost of producing the
> Affidavit or will I have to pay for the court's time?

The big risk is that you have to pay the executor's costs if you lose
your argument. Could be '000s.

>> c.    if you are right about that interpretation and also right that
>> the executor has distributed the estate then ISTM the only way you
>> (and the others in your position) are likely to get your money is by
>> proceedings against the executor personally;
>
> Small claims court?

I don't recall you telling us that the amount at stake. But you cannot
count on the small claims track. A judge may decide it's too complex.
And there's the potential complication of other beneficiaries under the
partial intestacy making claims.

You also can't count on getting the money easily even if you win your
argument about the interpretation of the will.

I really think you need to pause and get advice on the risks from a
solicitor who handles probate disputes.

[Chris R]

On 31/10/2017 11:04, Martin Brown wrote:
> On 30/10/2017 16:45, ance...@quintus.org.uk wrote:
>
>> The death was in May this year and Probate granted in July.
>
> Relatively quick so a fairly simple estate?
>
>> I believe the Estate to have been distributed and that Executor fraud has
>> taken place.`
>
> That is a very serious accusation to make about an Executor. Being an
> executor is at best a thankless task involving a great deal of tedious
> administration and at worst you face abuse by disgruntled beneficiaries.
>

It is also very bad tactics. As soon as there is an allegation of fraud,
any litigation becomes much more difficult, because the defendant cannot
be obliged to incriminate himself and the allegation has to be proven to
the criminal standard. Fraud should never be pleaded unless it is
essential to the case.
--
Chris R

========legalstuff========
I post to be helpful but not claiming any expertise nor intending
anyone to rely on what I say. Nothing I post here will create a
professional relationship or duty of care. I do not provide legal
services to the public. My posts here refer only to English law except
where specified and are subject to the terms (including limitations of
liability) at http://www.clarityincorporatelaw.co.uk/legalstuff.html
======end legalstuff======

[ance...@quintus.org.uk]

On 1-Nov-2017, Robin <rb...@hotmail.com> wrote:

> >
> > If I don't get the order then I'll only have the cost of producing the
> > Affidavit or will I have to pay for the court's time?
>
> The big risk is that you have to pay the executor's costs if you lose
> your argument. Could be '000s.

As I understand it there is no opportunity for the Executor to incur any
costs when an application for a Summons is considered by the Probate
Registry.

If the order is granted then the Executor could turn up at the hearing and
defend it with a legal team but how can they defend not producing an Account
to the court?

>
> >> c.    if you are right about that interpretation and also right that
> >>
> >> the executor has distributed the estate then ISTM the only way you
> >> (and the others in your position) are likely to get your money is by
> >> proceedings against the executor personally;
> >
> > Small claims court?
>
> I don't recall you telling us that the amount at stake. But you cannot
> count on the small claims track. A judge may decide it's too complex.
> And there's the potential complication of other beneficiaries under the
> partial intestacy making claims.

There are quite a few people who would benefit from the Partial Intestacy
but each amount is less than the small claims limit of £10,000 and I
anticipate each would choose to pursue their share separately or not.

[Robin]

On 01/11/2017 14:59, ance...@quintus.org.uk wrote:
> On 1-Nov-2017, Robin <rb...@hotmail.com> wrote:
>
>>>
>>> If I don't get the order then I'll only have the cost of producing the
>>> Affidavit or will I have to pay for the court's time?
>>
>> The big risk is that you have to pay the executor's costs if you lose
>> your argument. Could be '000s.
>
> As I understand it there is no opportunity for the Executor to incur any
> costs when an application for a Summons is considered by the Probate
> Registry.
>
> If the order is granted then the Executor could turn up at the hearing and
> defend it with a legal team but how can they defend not producing an Account
> to the court?

Perhaps the procedure has changed since I last saw it (which was the
early noughties) when I *think* it was:

- put the executor on notice you will seek an order unless...

- swear your affidavit and issue the summons

- a hearing is fixed

- serve the executor (at whose cost??)

- hearing takes place at which the executor can argue against an order

- the Registrar decides the matter - and decides also any applications
for costs

- either side can appeal so you go off to the High Court with a hop,
skip and a *big* jump in costs.

But you need someone who *knows* what happens *now* - not some bloke on
the internet who has already demonstrated the capacity to get it wrong.


>>>> c.    if you are right about that interpretation and also right that

>>>>
>>>> the executor has distributed the estate then ISTM the only way you
>>>> (and the others in your position) are likely to get your money is by
>>>> proceedings against the executor personally;
>>>
>>> Small claims court?
>>
>> I don't recall you telling us that the amount at stake. But you cannot
>> count on the small claims track. A judge may decide it's too complex.
>> And there's the potential complication of other beneficiaries under the
>> partial intestacy making claims.
>
> There are quite a few people who would benefit from the Partial Intestacy
> but each amount is less than the small claims limit of £10,000 and I
> anticipate each would choose to pursue their share separately or not.

I don't see how that is in your control.

You need someone who knows the current rules on case management. But I
think it is at least likely that if you (at your sole risk of costs)
have persuaded the Registrar that the executor got it wrong; and some or
all of the other beneficiaries then jump on the bandwagon; then the
court will hear all the claims together because at the same time the
core facts and law are the same.

>> You also can't count on getting the money easily even if you win your
>> argument about the interpretation of the will.
>>
>> I really think you need to pause and get advice on the risks from a
>> solicitor who handles probate disputes.

[ance...@quintus.org.uk]

Thank you Robin this is what I needed to hear.

[Janet]

In article <BklKB.201853$cg7.1...@fx15.ams1>, ance...@quintus.org.uk
says...

> There are quite a few people who would benefit from the Partial Intestacy
> but each amount is less than the small claims limit of £10,000 and I
> anticipate each would choose to pursue their share separately or not.
>
>

Have you seen the Will, do you know what the debts and expenses were,
and do you also know what the living named beneficiariesn received.

Janet

[ance...@quintus.org.uk]

Yes I've seen the will and the Grant of Probate (which gives the net value
of the Estate, i.e. after debts and expenses) but have no idea as to the
debts and expenses nor how much was distributed to the other living
Beneficiary - hence the need for the Summons.

[Pelican]

Do you mean that you have no idea how much you might get if the
circumstances are as you say they are?

[Chris R]

I don't think the OP deserves this kind of aggressive questioning. He
appears to have a legitimate claim, and needs to ascertain how best to
enforce it, and the risks of a claim.
--
Chris R

[Roland Perry]

In message <otdj98$lok$3...@dont-email.me>, at 22:53:27 on Wed, 1 Nov 2017,
Chris R <invalid...@invalid.invalid.com> remarked:

>>> Yes I've seen the will and the Grant of Probate (which gives the net
>>>value of the Estate, i.e. after debts and expenses) but have no idea
>>>as to the debts and expenses nor how much was distributed to the
>>>other living Beneficiary - hence the need for the Summons.

>> Do you mean that you have no idea how much you might get if the
>>circumstances are as you say they are?
>>
>I don't think the OP deserves this kind of aggressive questioning. He
>appears to have a legitimate claim, and needs to ascertain how best to
>enforce it, and the risks of a claim.

Perhaps the OP can defuse the situation a little by declaring whether
he's concerned that the debts an expenses might have been overstated, or
is it that the wrong rule has been used to distribute the net value.

Or perhaps a bit of each.

However, the currently stated probate net value is at least a worst-case
figure to apply to different rules[1] and it should be possible to work
out how much each beneficiary would have got under rule #1 (the rule
used, and which he disputes) versus rule #2 (the rule he believes
*should* apply).

That'll determine how much he might one day be suing for, and how much
the executor-beneficiary might have at hand.

But I think first it *is* necessary to get a bit of paper with the
various numbers on, which shouldn't be onerous for the executor and if
the executor believes they've applied the correct rule they have the
apocryphal "nothing to hide".

[1] I'm afraid I've lost track of who is who, and what the law is, so
what follows is potential common-sense scenarios, not all of which apply
ever, let alone in the OPs situation.

A will divides 90k equally between three beneficiaries Tom, Dick and
Harry. Harry pre-deceases.

a) Divide the 90k equally between Tom and Dick.

b) Divide Harry's 30k between his two heirs, Tweedledum and
Tweedledee so they each get 15k.

c) Apply intestacy rules to Harry's 30k in isolation, which may result
in some funds being distributed, in designated percentages between
some or all of:

Just Tom and Dick.
Tom, Dick and their sister Harriet, who was cut out of the
original will.
Tom, Dick, Tweedledum and Tweedledee.
Tom, Dick, Harriet, Tweedledum and Tweedledee.
Some other permutation (like I said I'm unaware of the detail of
intestacy law, and am not minded to look it up; but someone else
here can perhaps chip in)
--
Roland Perry

[Robin]

On 01/11/2017 17:09, ance...@quintus.org.uk wrote:

>
> Thank you Robin this is what I needed to hear.
>

Or possibly not. I think I have - yet again - missed an important point
or 2.

I think any hearing on the order can only decide the order. So the
Registrar may order the executor to give you the accounts and inventory
on the basis that your interpretation of the will is arguable without
deciding that it is right - because the interpretation is not the issue
on the table.

Or - worse - the Registrar may decide the question of interpretation has
to be decided first, before the question of an order for the accounts etc.

And that worse is much worser if I am right that a ruling on the
interpretation of the will requires not just a separate claim but one to
the High Court[1]. (I think that could be combined there with a claim
for the accounts.) But it's a more complicated/expensive procedure than
the summons. (And than filling in an online claim and hoping for the
small claims track.)

Of course all the above could be wrong. I offer it only as further
evidence that (a) the legal processes ain't necessarily clear and simple
(let alone cheap) and (b) I'm not the one to guide you through them.

Have you looked online to see if there are solicitors specialising in
probate claims who offer a free initial consultation over the phone?
Look for membership of STEP as a minimum.



[1] it looks now to be one under what is now Civil Procedure Rule
64.2(a) but I could have got that wrong too

[Janet]

In article <otdj98$lok$3...@dont-email.me>,
invalid...@invalid.invalid.com says...

My post was not intended to be "aggressive questioning" at all; just
trying to clarify how much factual info the OP has, before he risks
losing more than he might gain.

It's not unheard of for "residuary beneficiaries" to end up with
peanuts (instead of the once-intended lions share ) because since making
the will, the previously affluent testator has drained their assets
dry. (Equity release to pay for home support then private residential
care, for example).

Janet.

[Tim Woodall]

On 2017-11-02, Janet <nob...@home.com> wrote:
>
> It's not unheard of for "residuary beneficiaries" to end up with
> peanuts (instead of the once-intended lions share ) because since making
> the will, the previously affluent testator has drained their assets
> dry. (Equity release to pay for home support then private residential
> care, for example).
>

Is a beneficiary a beneficiary if they inherit 'the residue' and there
is no residue to inherit? That might be another problem for the OP. If
he's not a beneficiary then I'm not sure he has any right to issue a
summons like this.

Of course, it would be better if the Executor told the op this (but at
the same time, if there's a fear this might become contentious then the
executor might have been advised to say nothing that isn't legally
required)

[Robin]

On 02/11/2017 13:22, Tim Woodall wrote:

>
> Is a beneficiary a beneficiary if they inherit 'the residue' and there
> is no residue to inherit?

For the purposes of their entitlement to see the accounts, yes.

But that is not the situation the OP faces.

[Roland Perry]

In message <slrnovm70h....@einstein.home.woodall.me.uk>, at
13:22:25 on Thu, 2 Nov 2017, Tim Woodall <new...@woodall.me.uk>
remarked:

>Is a beneficiary a beneficiary if they inherit 'the residue' and there
>is no residue to inherit? That might be another problem for the OP.

aiui he's trying to recover an amount that was originally bequeathed to
a (now shown to be) pre-deceased beneficiary. It's not about "residue".
--
Roland Perry

[Janet]

In article <IwEMhpZa...@perry.co.uk>, rol...@perry.co.uk says...

The predeceased was a residuary beneficiary.

Janet

[Roland Perry]

In message <MPG.3465581...@news.individual.net>, at 16:28:44 on
Thu, 2 Nov 2017, Janet <nob...@home.com> remarked:

>> aiui he's trying to recover an amount that was originally bequeathed to
>> a (now shown to be) pre-deceased beneficiary. It's not about "residue".
>
> The predeceased was a residuary beneficiary.

Maybe that's why the situation appears to be so opaque. Can you weave
such a beneficiary into the list of potential "rules" I posted earlier?
--
Roland Perry

[Roland Perry]

In message <RLZ6$6ftD4...@perry.co.uk>, at 20:32:45 on Thu, 2 Nov
2017, Roland Perry <rol...@perry.co.uk> remarked:

>>> aiui he's trying to recover an amount that was originally bequeathed to
>>> a (now shown to be) pre-deceased beneficiary. It's not about "residue".
>>
>> The predeceased was a residuary beneficiary.
>
>Maybe that's why the situation appears to be so opaque. Can you weave
>such a beneficiary into the list of potential "rules" I posted earlier?

If it helps, I've looked back at the earlier thread now, and in the OP's
case there were no specific bequests, and each of three beneficiaries
got one third of the 'residue', which is what I posted yesterday:

"A will divides 90k equally between three beneficiaries Tom,
Dick and Harry. Harry pre-deceases."

Is it the case that you think all of the pot being residue affects the
way intestacy laws apply?
--
Roland Perry

[Tim Woodall]

I don't, but it's perfectly possible that when the will was drafted
there was expected to be a (possibly substantial) residue but at the
time it is executed there is no residue.

Hence my question about whether a intestate beneficiary exists if
there's nothing to distribute under intestacy rules.

I leave my watch to Joe. Everything else goes to Fred.

I sell my watch, Joe dies. Then I die. Is there intestate beneficiaries
who get nothing or is Fred the only beneficiary?

(I realise that this isn't quite the situation of the OP but it's
quicker and simpler for me to construct - assuming I've understood the
rules correctly about what happens to the watch if I'd still owned it)

[Roland Perry]

In message <slrnovogkf....@einstein.home.woodall.me.uk>, at
10:18:55 on Fri, 3 Nov 2017, Tim Woodall <new...@woodall.me.uk>
remarked:

>On 2017-11-03, Roland Perry <rol...@perry.co.uk> wrote:
>> In message <RLZ6$6ftD4...@perry.co.uk>, at 20:32:45 on Thu, 2 Nov
>> 2017, Roland Perry <rol...@perry.co.uk> remarked:
>>
>>>>> aiui he's trying to recover an amount that was originally bequeathed to
>>>>> a (now shown to be) pre-deceased beneficiary. It's not about "residue".
>>>>
>>>> The predeceased was a residuary beneficiary.
>>>
>>>Maybe that's why the situation appears to be so opaque. Can you weave
>>>such a beneficiary into the list of potential "rules" I posted earlier?
>>
>> If it helps, I've looked back at the earlier thread now, and in the OP's
>> case there were no specific bequests, and each of three beneficiaries
>> got one third of the 'residue', which is what I posted yesterday:
>>
>> "A will divides 90k equally between three beneficiaries Tom,
>> Dick and Harry. Harry pre-deceases."
>>
>> Is it the case that you think all of the pot being residue affects the
>> way intestacy laws apply?
>
>I don't,

I was asking Janet, actually. But never mind.

> but it's perfectly possible that when the will was drafted
>there was expected to be a (possibly substantial) residue but at the
>time it is executed there is no residue.
>
>Hence my question about whether a intestate beneficiary exists if
>there's nothing to distribute under intestacy rules.

In the OP's case, a fairly substantial residue (in the absence of any
specific bequests) exists.

>I leave my watch to Joe. Everything else goes to Fred.
>
>I sell my watch, Joe dies. Then I die. Is there intestate beneficiaries
>who get nothing or is Fred the only beneficiary?
>
>(I realise that this isn't quite the situation of the OP

It's very different, but never mind.

>but it's quicker and simpler for me to construct

Something easier to digest than A, B's and C's, anyway.

>- assuming I've understood the
>rules correctly about what happens to the watch if I'd still owned it)

If you have no watch, then the estate distributes no watch. It doesn't
matter who it might have gone to had it sill existed.

Assuming Fred is still alive he gets everything remaining.

If Fred has also died, then we are much closer to the OP's situation.

Joe, or his heirs, only get a share of the residue if he's closely
enough related to you. If he was just a golf partner, then that line of
inheritance has dried up.
--
Roland Perry

[Janet]

In article <hcWGKtsXGD$ZF...@perry.co.uk>, rol...@perry.co.uk says...
> Newsgroups: uk.legal.moderated
> Date: Fri, 3 Nov 2017 09:06:31 +0000
> Subject: Re: Asking Probate Registry to issue a Summons
> From: Roland Perry <rol...@perry.co.uk>

>
> In message <RLZ6$6ftD4...@perry.co.uk>, at 20:32:45 on Thu, 2 Nov
> 2017, Roland Perry <rol...@perry.co.uk> remarked:
>
> >>> aiui he's trying to recover an amount that was originally bequeathed to
> >>> a (now shown to be) pre-deceased beneficiary. It's not about "residue".
> >>
> >> The predeceased was a residuary beneficiary.
> >
> >Maybe that's why the situation appears to be so opaque. Can you weave
> >such a beneficiary into the list of potential "rules" I posted earlier?
>
> If it helps, I've looked back at the earlier thread now, and in the OP's
> case there were no specific bequests, and each of three beneficiaries
> got one third of the 'residue',

I must have missed any post from the OP containing that information.

Janet.

[Roland Perry]

In message <MPG.3466976...@news.individual.net>, at 15:11:07 on
Fri, 3 Nov 2017, Janet <nob...@home.com> remarked:

>> >>> aiui he's trying to recover an amount that was originally bequeathed to
>> >>> a (now shown to be) pre-deceased beneficiary. It's not about "residue".
>> >>
>> >> The predeceased was a residuary beneficiary.
>> >
>> >Maybe that's why the situation appears to be so opaque. Can you weave
>> >such a beneficiary into the list of potential "rules" I posted earlier?
>>
>> If it helps, I've looked back at the earlier thread now, and in the OP's
>> case there were no specific bequests, and each of three beneficiaries
>> got one third of the 'residue',
>
> I must have missed any post from the OP containing that information.

It was the same OP posting where I assumed you got the information about
the deceased being a residuary beneficiary.

I quoted the "each getting a third" part, in my own posting of 09:06
this morning.
--
Roland Perry

[ance...@quintus.org.uk]

On 3-Nov-2017, Roland Perry <rol...@perry.co.uk> wrote:

> In message <MPG.3466976...@news.individual.net>, at 15:11:07 on
> Fri, 3 Nov 2017, Janet <nob...@home.com> remarked:
> >> >>> aiui he's trying to recover an amount that was originally
> >> >>> bequeathed to
> >> >>> a (now shown to be) pre-deceased beneficiary. It's not about
> >> >>> "residue".
> >> >>
> >> >> The predeceased was a residuary beneficiary.

Yes they were.

> >> >
> >> >Maybe that's why the situation appears to be so opaque. Can you weave
> >> >such a beneficiary into the list of potential "rules" I posted
> >> >earlier?
> >>
> >> If it helps, I've looked back at the earlier thread now, and in the
> >> OP's
> >> case there were no specific bequests, and each of three beneficiaries
> >> got one third of the 'residue',

Correct. There was only one clause in the will leaving the Residue
(£116,000) to be divided between three equally.

> >
> > I must have missed any post from the OP containing that information.
>
> It was the same OP posting where I assumed you got the information about
> the deceased being a residuary beneficiary.
>
> I quoted the "each getting a third" part, in my own posting of 09:06
> this morning.

I was hoping to rely on:

Megarry's "Law of Real Property" at p.583:

"...if the gift which lapses is itself a gift of all or part of the
residue, there is a partial intestacy and the property passes to the
persons entitled on intestacy"

The authorities cited for that are:
Ackroyd v Smithson ( 1780) I Bro.C.C. 503
Re Forrest [1931] 1 Ch. 162
Re Midgley [1955] Ch. 576.

[ance...@quintus.org.uk]

On 2-Nov-2017, Robin <rb...@hotmail.com> wrote:

> > Thank you Robin this is what I needed to hear.
> >
> Or possibly not. I think I have - yet again - missed an important point
> or 2.

I meant in terms of recognizing that the way forward, should I choose to go
there, is full of potential problems/costs.

[Roland Perry]

In message <U92LB.122465$Ym.1...@fx17.ams1>, at 17:59:45 on Fri, 3 Nov
2017, ance...@quintus.org.uk remarked:

>> >> >> The predeceased was a residuary beneficiary.
>
>Yes they were.
>
>> >> >
>> >> >Maybe that's why the situation appears to be so opaque. Can you weave
>> >> >such a beneficiary into the list of potential "rules" I posted
>> >> >earlier?
>> >>
>> >> If it helps, I've looked back at the earlier thread now, and in the
>> >> OP's
>> >> case there were no specific bequests, and each of three beneficiaries
>> >> got one third of the 'residue',
>
>Correct. There was only one clause in the will leaving the Residue
>(£116,000) to be divided between three equally.

Hurrah! At least you have that figure without resorting to legal action.

>> > I must have missed any post from the OP containing that information.
>>
>> It was the same OP posting where I assumed you got the information about
>> the deceased being a residuary beneficiary.
>>
>> I quoted the "each getting a third" part, in my own posting of 09:06
>> this morning.
>
>I was hoping to rely on:
>
> Megarry's "Law of Real Property" at p.583:
>
>"...if the gift which lapses is itself a gift of all or part of the
>residue, there is a partial intestacy and the property passes to the
>persons entitled on intestacy"

Perhaps there are some others involved that I'm not up to speed with,
but are you perhaps one of the 6/8 of nieces/nephews not mentioned in
the will, who might be wanting to claim a 1/8 share of a third of £166k.

In other words about 7k each?
--
Roland Perry

[Pelican]

So far as I have understood the thread, there was a significant residue
in the estate, the residue was to be divided between three equally, and
at least one of the residuary beneficiaries has died. I don't know when
they died. I also don't know the terms if the residuary clause.

The OP had framed their initial question from a partly informed
background on the law, but provided very limited facts, and has been
asked several questions about the circumstances.

View may well differ, but I am wary of posters who want advice on the
law where they want to frame their enquiry in such specific terms. At
this stage, advice on how best to proceed seems premature. The facts
are not clear.

[Roland Perry]

In message <otiiib$sc4$1...@dont-email.me>, at 07:11:54 on Sat, 4 Nov 2017,
Pelican <water...@sea.somewhere.org.ir> remarked:

>So far as I have understood the thread, there was a significant residue
>in the estate,

Reportedly all residue, a little over £100k.

>the residue was to be divided between three equally, and at least one
>of the residuary beneficiaries has died. I don't know when they died.

Just one, and before the testator.

> I also don't know the terms if the residuary clause.

Just dividing it equally between the three, and apparently without
saying anything potentially useful like "amongst those of the three
who are still alive".

>The OP had framed their initial question from a partly informed
>background on the law, but provided very limited facts, and has been
>asked several questions about the circumstances.
>
>View may well differ, but I am wary of posters who want advice on the
>law where they want to frame their enquiry in such specific terms. At
>this stage, advice on how best to proceed seems premature. The facts
>are not clear.

The main issue here is apparently whether:

(a) The surviving two, and only those two, get to share half each, or
(b) The non-surviving's 1/3 share should be spread across much wider
audience of various relatives.

That simple choice ought to be clear from the facts as known, but it
appears that no-one is prepared to claim they know the answer.
--
Roland Perry

[Robin]

On 03/11/2017 20:11, Pelican wrote:
<snip>

> View may well differ, but I am wary of posters who want advice on the
> law where they want to frame their enquiry in such specific terms.  At
> this stage, advice on how best to proceed seems premature.  The facts
> are not clear.

I am sorry if you consider my advice premature.

It would have been better if we could have seen the will in its entirety
(with only names/addresses redacted); and the correspondence between the
OP and the executor; and other relevant material - eg estimates of the
income and assets of the executor - and indeed of the OP. But it seemed
to me the OP gave in his earlier thread a good deal of information; and
that he has now given us the crucial information that he has or is about
to embark on the procedure provided for in the NCPR to seek an inventory
and accounts.

In those circumstances declining to offer any advice at all, pending
further and better particulars, seems to me redolent of Pontious Pilate.

[Robin]

Ah, yes, my mistake. I was in my day seen as quite good at playing
Jeremiah :)


PS

As that's my second Biblical reference in as many minutes I had better
declare my true colours as a lapsed atheist.

[Pelican]

On 4/11/2017 08:14, Robin wrote:
> On 03/11/2017 20:11, Pelican wrote:
> <snip>
>> View may well differ, but I am wary of posters who want advice on the
>> law where they want to frame their enquiry in such specific terms.  At
>> this stage, advice on how best to proceed seems premature.  The facts
>> are not clear.
>
> I am sorry if you consider my advice premature.

Not at all.

> It would have been better if we could have seen the will in its entirety
> (with only names/addresses redacted); and the correspondence between the
> OP and the executor; and other relevant material - eg estimates of the
> income and assets of the executor - and indeed of the OP.  But it seemed
> to me the OP gave in his earlier thread a good deal of information; and
> that he has now given us the crucial information that he has or is about
> to embark on the procedure provided for in the NCPR to seek an inventory
> and accounts.
>
> In those circumstances declining to offer any advice at all, pending
> further and better particulars, seems to me redolent of Pontious Pilate.

Sure. But my experience of people seeking legal advice, where you find
that there is a lot of important stuff you didn't know, is that there is
more to come. It seems that the executor and the OP are not on best
terms. That may also be the situation with the two residuary
beneficiaries. This seems like a case where a fairly straight-forward
discussion between those involved could have resolved the matter
quickly. Instead, it's pistols at dawn.

[Roland Perry]

In message <U92LB.122465$Ym.1...@fx17.ams1>, at 17:59:45 on Fri, 3 Nov
2017, ance...@quintus.org.uk remarked:

>I was hoping to rely on:
>
> Megarry's "Law of Real Property" at p.583:
>
>"...if the gift which lapses is itself a gift of all or part of the
>residue, there is a partial intestacy and the property passes to the
>persons entitled on intestacy"

Is that just the cousins, and are you one of the ?six who weren't
mentioned in the original will?
--
Roland Perry

[Pelican]

On 4/11/2017 07:38, Roland Perry wrote:
> In message <otiiib$sc4$1...@dont-email.me>, at 07:11:54 on Sat, 4 Nov 2017,
> Pelican <water...@sea.somewhere.org.ir> remarked:
>
>> So far as I have understood the thread, there was a significant
>> residue in the estate,
>
> Reportedly all residue, a little over £100k.
>
>> the residue was to be divided between three equally, and at least one
>> of the residuary beneficiaries has died.  I don't know when they died.
>
> Just one, and before the testator.
>

>> I also don't know the terms of the residuary clause.

>
> Just dividing it equally between the three, and apparently without
> saying anything potentially useful like "amongst those of the three
> who are still alive".
>
>> The OP had framed their initial question from a partly informed
>> background on the law, but provided very limited facts, and has been
>> asked several questions about the circumstances.
>>
>> View may well differ, but I am wary of posters who want advice on the
>> law where they want to frame their enquiry in such specific terms.  At
>> this stage, advice on how best to proceed seems premature.  The facts
>> are not clear.
>
> The main issue here is apparently whether:
>
> (a) The surviving two, and only those two, get to share half each, or
> (b) The non-surviving's 1/3 share should be spread across much wider
>     audience of various relatives.
>
> That simple choice ought to be clear from the facts as known, but it
> appears that no-one is prepared to claim they know the answer.

It would be helpful to know the terms of the clause (even better, the
will), and the circumstances. As is often the situation, the answer may
be in the fine detail of the facts. (But, on the face of it, a 1/3
share of the residue was not disposed by by the will, so there may be an
intestacy to that extent. Who might be entitled in that case is unclear.)

[Robin]

On 03/11/2017 21:54, Pelican wrote:
> On 4/11/2017 08:14, Robin wrote:
>> On 03/11/2017 20:11, Pelican wrote:
>> <snip>
>>> View may well differ, but I am wary of posters who want advice on the
>>> law where they want to frame their enquiry in such specific terms.
>>> At this stage, advice on how best to proceed seems premature.  The
>>> facts are not clear.
>>
>> I am sorry if you consider my advice premature.
>
> Not at all.
>
>> It would have been better if we could have seen the will in its
>> entirety (with only names/addresses redacted);

My apologies to the OP. I recall now he posted exactly that in his
earlier thread, which is what led to advice (including from some more
qualified than me) that he appears to have a case.

and the correspondence
>> between the OP and the executor; and other relevant material - eg
>> estimates of the income and assets of the executor - and indeed of the
>> OP.  But it seemed to me the OP gave in his earlier thread a good deal
>> of information; and that he has now given us the crucial information
>> that he has or is about to embark on the procedure provided for in the
>> NCPR to seek an inventory and accounts.
>>
>> In those circumstances declining to offer any advice at all, pending
>> further and better particulars, seems to me redolent of Pontious Pilate.
>
> Sure.  But my experience of people seeking legal advice, where you find
> that there is a lot of important stuff you didn't know, is that there is
> more to come.  It seems that the executor and the OP are not on best
> terms.  That may also be the situation with the two residuary
> beneficiaries.  This seems like a case where a fairly straight-forward
> discussion between those involved could have resolved the matter
> quickly.  Instead, it's pistols at dawn.

It seems to me your "could" rests on some heroic assumptions about the
reasonableness of the executor, and about the point at which the OP
became aware of the executor's interpretation of the will. In my
experience it is by no means unusual for executors to refuse even to
contemplate that they have misunderstood a will - especially if their
mistake means they have told people they are going to get more than they
should. And if it means asking for money back....

[Janet]

In article <fadc12dc-13b8-d6b4...@hotmail.com>, rbw0
@hotmail.com says...

it seemed
> to me the OP gave in his earlier thread a good deal of information;

Surely by now it's apparent that several participants in this thread,
including me, did not recognise the OP as the author of an earlier
thread about the same Will.

Therefore I was unaware of the information he provided in the first
thread but not this one.

Janet.

[Roland Perry]

In message <MPG.3467d70...@news.individual.net>, at 13:54:46 on
Sat, 4 Nov 2017, Janet <nob...@home.com> remarked:

That's one reason I prompted you (and others) with "If it helps, I've
looked back at the earlier thread now" upthread.
--
Roland Perry

[ance...@quintus.org.uk]

On 4-Nov-2017, Roland Perry <rol...@perry.co.uk> wrote:

> Is that just the cousins, and are you one of the ?six who weren't
> mentioned in the original will?

There are 12 cousins (including the Executor and the other surviving
Beneficiary. They would all take shares in the third according to their
number in their particular branch as the Testator had five siblings (e.g.
one is an only child on a branch while there are four in another branch).

To satisfy the need for more info I provide this from an earlier post:

> THIS IS THE LAST WILL AND TESTAMENT of me A of wwwwwwwwwwwwwwww and I
> hereby
> revoke all my former Wills and Testamentary Dispositions-----
>
> I appoint my niece B ofxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (below
> called "B") and my brother C of yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy
> (below called "C") to be the Executors and Trustees (below called "my
> Trustees" which where the context so requires means my Trustees or
> Personal
> Representatives for the time being) of this my Will------
>
> 2.(a) I give to my Trustees all my estate not otherwise specifically
> disposed of upon trust for sale with full power to postpone sale------
>
> (b) My Trustees shall pay all my debts and funeral and testamentary
> expenses and all tax payable by reason of my death and all legacies
> given
> by this my Will------
>
> (c) My Trustees shall hold the balance of my estate remaining after
> such
> payments (hereinafter called "my residuary estate") upon trust to be
> divided equally amongst my niece B my brother C and my nephew D of
> zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz-----
>
> 3. The Standard Provisions of the Society of Trust & Estate Practitioners
> (First Edition) shall apply with the deletion of paragraph 5. Section 11
> of
> the Trusts of Land and Appointment of Trustees Act 1996 (consultation with
> beneficiaries) shall not apply---
>
> 4. No Trustee of mine shall be personally liable for breach of trust
> unless
> committed or suffered knowingly and in bad faith or shall be bound to take
> any proceedings for breach of trust against a co-trustee or previous
> trustee
> or his representative------
>
> The will is signed, dated and witnessed by two non-beneficiaries.

I must confess I am of a mind to forget the whole thing at the moment.