Discussion
I hope ther is a legal person who might be able to help me here, it will save me all week end researching on the web.
My sister and I are joint executors to my mother's will. However my brother in law keeps interfering,as he says he has a right to do so, as my sister has MS and needs his help.
I say, that if my sister is not capable of doing probate, then I should be the sole executor. Which my brother in law and her do not agree with.
They say, that since my sister has MS and that he is her legal guardian, that he has the right to do her share of the probate, under the Disability and Equality Act 2010.
So the question is what takes preference in a court of law:
The act which states that if an executor is incapable of doing probate then they should step down and not get involved.
Or:
The Disability and Equality Act which states that she has the right to ask her legal guardian to represent her?
As a side not my mother hated my brother in law and did not want him to be involved.
Any help would be greatly appreciated.
Thanks.
John
My sister and I are joint executors to my mother's will. However my brother in law keeps interfering,as he says he has a right to do so, as my sister has MS and needs his help.
I say, that if my sister is not capable of doing probate, then I should be the sole executor. Which my brother in law and her do not agree with.
They say, that since my sister has MS and that he is her legal guardian, that he has the right to do her share of the probate, under the Disability and Equality Act 2010.
So the question is what takes preference in a court of law:
The act which states that if an executor is incapable of doing probate then they should step down and not get involved.
Or:
The Disability and Equality Act which states that she has the right to ask her legal guardian to represent her?
As a side not my mother hated my brother in law and did not want him to be involved.
Any help would be greatly appreciated.
Thanks.
John
All you have to do is head along to your local solicitors with your sister (and her husband) and get the solicitor to deal with the probate for you. You and your sister need to sign a couple of forms and eventually you will get a deed of probate and a bill for about £200 if it's a straight forward matter.
Do you really want the hassle?
Do you really want the hassle?
Tyre Smoke said:
All you have to do is head along to your local solicitors with your sister (and her husband) and get the solicitor to deal with the probate for you. You and your sister need to sign a couple of forms and eventually you will get a deed of probate and a bill for about £200 if it's a straight forward matter.
Do you really want the hassle?
If it's a very simple estate it's easy to do yourself....as for the issue at hand - what does the BIL want to do that's a problem anyway? His involvement should be very minimal.Do you really want the hassle?
I think your brother-in-law may be getting his wires crossed. The word Disability does not appear in the title of the legislation he refers to.
It is the Equality Act 2010 - http://www.legislation.gov.uk/ukpga/2010/15/sectio...
I have not examined every clause but the Act is primaily to do with preventing discrimination against the individual by others, not about their ability to perform their own legal obligations. I can find nothing which covers the issue of her right to ask her legal guardian to represent her.
Is his statement that he is her legal guardian correct or is he just telling you what he wants you to hear?
You may find this link helpful - http://www.publicguardian.gov.uk/decisions/decisio...
Even then I am not convinced that having that power will cover the situation here.
If you are named as an Executor in someone’s Will and are unable or unwilling to take up this role you have two options.
1.
Power reserved. This means that the other Executor(s) named on the Grant would deal with the Estate, but you would have the option of taking up the appointment at a later date if this was necessary.
2.
Any person entitled to probate may abandon that right by signing a renunciation witnessed by a disinterested witness. A renunciation is a document whereby the Executor relinquishes the title to the Grant. Renunciation must be absolute, that is, without contingency. A renunciation takes effect from the time it is signed but may be withdrawn at any time before it is lodged with the Probate Registry. Once lodged, it may only be retracted with the leave of a District Judge or Registrar.
The renunciation, however, does not confer right to a Grant of Probate on any other person. If it has been agreed that a next of kin will step in and apply for the Grant of Probate, then the person applying for the Grant of Probate may wish to lodge the renunciation document upon application for the Grant. It should be noted that an appointed Executor may only be able to renounce probate if he or she has not intermeddled in the Deceased’s Estate.
There is no option for an Executor to choose someone else. Only the testator (your mother) could do that by an appropriate clause in the will. (e.g. if X is unable/unwilling to act, then I appoint Y).
I assume from your post that your mother has passed away. Presumably the application for Probate has not yet been filed. The question of whether you will be the sole executor should be addressed first. I assume it will be you who makes the application to the Probate Court.
Please note that IANAL and the above is based solely on my experience as an Executor. Best to speak to a solicitor for clarification. It is a simple question, even if the answer may be less so.
It is the Equality Act 2010 - http://www.legislation.gov.uk/ukpga/2010/15/sectio...
I have not examined every clause but the Act is primaily to do with preventing discrimination against the individual by others, not about their ability to perform their own legal obligations. I can find nothing which covers the issue of her right to ask her legal guardian to represent her.
Is his statement that he is her legal guardian correct or is he just telling you what he wants you to hear?
You may find this link helpful - http://www.publicguardian.gov.uk/decisions/decisio...
Even then I am not convinced that having that power will cover the situation here.
If you are named as an Executor in someone’s Will and are unable or unwilling to take up this role you have two options.
1.
Power reserved. This means that the other Executor(s) named on the Grant would deal with the Estate, but you would have the option of taking up the appointment at a later date if this was necessary.
2.
Any person entitled to probate may abandon that right by signing a renunciation witnessed by a disinterested witness. A renunciation is a document whereby the Executor relinquishes the title to the Grant. Renunciation must be absolute, that is, without contingency. A renunciation takes effect from the time it is signed but may be withdrawn at any time before it is lodged with the Probate Registry. Once lodged, it may only be retracted with the leave of a District Judge or Registrar.
The renunciation, however, does not confer right to a Grant of Probate on any other person. If it has been agreed that a next of kin will step in and apply for the Grant of Probate, then the person applying for the Grant of Probate may wish to lodge the renunciation document upon application for the Grant. It should be noted that an appointed Executor may only be able to renounce probate if he or she has not intermeddled in the Deceased’s Estate.
There is no option for an Executor to choose someone else. Only the testator (your mother) could do that by an appropriate clause in the will. (e.g. if X is unable/unwilling to act, then I appoint Y).
I assume from your post that your mother has passed away. Presumably the application for Probate has not yet been filed. The question of whether you will be the sole executor should be addressed first. I assume it will be you who makes the application to the Probate Court.
Please note that IANAL and the above is based solely on my experience as an Executor. Best to speak to a solicitor for clarification. It is a simple question, even if the answer may be less so.
Edited by Red Devil on Saturday 19th February 06:40
Why don't you want him helping ?
Is there a dispute between you ?
If so then pass to solicitor (and expect a heafty bill)
We had similar thing when father in law died. Sister in law wanted to sort everything out and started to dictate to my wife (who is the elder) desipte will saying joint executors. We let solicitor take over.
Paul H
Is there a dispute between you ?
If so then pass to solicitor (and expect a heafty bill)
We had similar thing when father in law died. Sister in law wanted to sort everything out and started to dictate to my wife (who is the elder) desipte will saying joint executors. We let solicitor take over.
Paul H
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