How far must an executor go to establish monies in estate before Confirmation? (Scotland)

[SirChenjins]

Firstly, this is in Scotland and I'm aware we have a different legal system up here. What happens in England may not be relevant.

Very long story short(ish). MiL died nearly 2 years ago. She was in her 90s when she died, pretty much housebound, carers each day, cognitive decline, visually impaired, no access to a computer. BiL had been dealing with her financial affairs for many year - this was agreed way back between him and DH as BiL doesn't work and had time to do this. DH and I both work f/t, 3 DC. At first it was very amicable and BiL would share financial records with DH - both had PoA, both equal beneficiaries of the will, both named as executors. Gradually over the years, this changed - BiL becoming very secretive, not keeping DH up to date with financial records. Multiple savings and current accounts being opened (some online), a loan taken out in MiL's name, missing bonds, money being to his own account to be used to pay for MiL's bills (no evidence of what these bills were), large sums of cash being taken from the cashline. Any time DH questioned it, all hell would break loose with BiL - MiL trusted BiL, didn't have a clue what was going on with her money, got very upset when DH raised anything. DH did raise it with the bank and the LA, but was advised it would have to go to the police - again, this caused huge upset for MiL and so he didn't go ahead.

After her death, and with DH and BiL no longer speaking, they agreed (through lawyers) they would appoint an independent executor. Our lawyer advised DH that the executors role would be to ingather all financial statements to make a full reconciliation of the estate for Confirmation. Any debts owed would be taken from BiL's share of the estate. Executor (who is a lawyer) has now confirmed that BiL has submitted a list of financial gifts (he made to himself from MiL's accounts - and they were large) and financial records he kept, and although there is a (large 6 figure) discrepancy between what is in the accounts and what there should be (based on MiL's income and expenditure) the executor will not be pursuing this as it would be "tantamount to calling BiL a thief". Executor now wants to move ahead immediately to sell the house, and that and what is left in the accounts will form Confirmation. He has told DH that if DH wishes to pursue BiL that he will need to do this - it is not the executor's role to question BIL and that he will accept BiL without question. He will also not be sharing the financial records from BiL with DH.

Does anyone know if this is correct?

Anyone?

So the deceased had two children, both had PoA (presumably jointly and severally)
C1 let C2 run the finances. C1 knew that C2 was dodgy but decided not to pursue.
C1 and C2, as executors, assumed a solicitor as executor and then both resigned.
Solicitor executor is treating ‘gifts’ to C2 as a loan and an asset of the estate.
Executor will not be pursuing explanation of other pre-death financial dealings of C2. Executor considers it is for C1 to pursue C2.
Executor will not share the financial records with C1.

I cannot see anything amiss with the solicitor’s approach.

So the deceased had two children, both had PoA (presumably jointly and severally) -
Yes - although it now transpires that C2 did not register PoA with all the banks, so was in effect running MiL's finances as their own money.

C1 let C2 run the finances. C1 knew that C2 was dodgy but decided not to pursue.
Decided not to pursue with the police as MiL became very distressed when this was mentioned. Did raise concerns with the LA (MiL had a social worker) and the banks.

C1 and C2, as executors, assumed a solicitor as executor and then both resigned.
Yes that's correct.

Solicitor executor is treating ‘gifts’ to C2 as a loan and an asset of the estate.
Not a loan. The estate has decreased by ££££££££££££££s as a result of C2 gifting themselves money from the accounts over the years. The executor appears unconcerned that the gifts and the records BiL kept do not tally with what's in the accounts. The executor has confirmed they do not tally.

Executor will not be pursuing explanation of other pre-death financial dealings of C2. Executor considers it is for C1 to pursue C2.
C2 will not discuss anything with C1 so it would have to be pursued through the courts.

Executor will not share the financial records with C1.
Yes, executor will not share the financial records that BiL kept with DH.

So BiL can have siphoned off large 6 figure sums, present details of gifts he paid himself with no evidence they were gifts and financial records that bear no resemblance to what the account totals show - and the executor effectively agrees and does not investigate?

This isn’t what you want to hear but essentially it’s going to cost £££ to pursue this now.

It’s shit and C2 has behaved appallingly, but honestly C1 needed to have stepped in much earlier by involving the authorities. In England it would be the Office of the Public Guardian and Court of Protection.

Sadly, as you are finding out, some people have no morals when it comes to money.

Your DH can involve the police, but I suspect C2 will get away with it and your DH will have wasted his time, sanity and £££. I would take the inheritance the Executor is offering.

Thank @Harassedevictee We've had a long chat about it today and have come to the same conclusion. It's been a horrible time over the last few years and DH thought that the executor would shine more light on BIL's activities, but that's not going to happen. It's time to move on.

I am sorry that you are having to go through this, it sounds like a horrible situation to be in.

I believe that the solicitor is correct. As executor he is only responsible for records post the death of your MiL. The PoA was a joint responsibility and in theory your DH should have done more prior to death to fulfil his own duties, especially if he was aware of any misappropriation of MiLs funds.

I would be seeking legal advice, from someone other than the appointed executor, about DHs chances of bringing a case against BiL. Again the solicitor seems to be correct that the only way to resolve it involves accusing BiL of theft. Th executor has to rely on the information provided by BiL - he is not an investigator, that role lies with the Office of the Public Guardian.

https://www.burnett-reid.co.uk/article/the-legal-repercussions-of-abuse-of-power-of-attorney

Thanks @FalseSpring I agree that more should have been done before MiL died, but when it's actually happening it's so difficult. MiL depended on BiL a lot, and he threatened to stop visiting or doing anything to help her if she left DH anywhere near the finances, and got so upset at the thought of tge police being involved. Hindsight is 20/20 though, and it's certainly been a shock that the executor is simply accepting what BiL is telling them, even though a poa shouldn't pay themselves 'gifts' of these sizes or operate the bank accounts the way he did.

At this point, DH just wants everything completed and then we can move forward with BiL out of our lives for good.

In defence of C1 financial abuse can be hard to see. If it’s your sibling abusing your parent you don’t want to see it either, and constantly question and justify yours and their actions.

we were in a similar situation. C1 financially abusing parents. C2 did not see it for a long time. The parent was competent, if frail. In hindsight C1 had deliberately kept C2 away from their parent, little things like lost invitations to family events and holidays, or no invitation because “you won’t have been able to get a babysitter” or “you were working”, things that raised an eyebrow but not alarms. Everything was taken online, so no bank statements. To the casual eye C1 made a show of “caring” for their parent.

it was a one tiny slip that outed them to C2, when they visited and parent wanted to withdraw some cash to give to the grandchildren, and it was discovered c1 had taken their bank cards off them. It was then c2 saw how much money had gone missing, wills had been changed, power of attorney set up without parents knowledge etc. it was horrific and neither parent nor c1 could believe it at first.

o/p we are slightly different as we are in wales to start, and C1 has denied being gifted any money. So our executor/solicitor has added everything they took back into the estate, as if it’s not a gift it’s a loan.

@Cileymyrus I do appreciate how difficult it is when it’s siblings. I also know that you have to be pro active when you suspect financial abuse whilst taking a light touch.

The op stated C1 did become aware and I know the idea of getting the police involved against family is very challenging. However, C1 was an Attorney and could have used the PoA to gather evidence and possibly taken a more active but restrained approach to intervene earlier.

My response was about being realistic and that trying to recover money that may well have been spent is likely to cost ££ and may end up with C1 even more out of pocket.

However, C1 was an Attorney and could have used the PoA to gather evidence and possibly taken a more active but restrained approach to intervene earlier

Very difficult, as DH found out. There were a lot of phone calls to banks and the LA, and conversations with MiL, but ultimately the advice was the same - this was a police matter and they would have to be involved. Very difficult when someone is adamant they trust a member of their family and was very dependent on them. We'd never been in this situation before, and it was certainly eye-opening.

We actually tried to get OPG to investigate.

to start, you need evidence. Which if only the abuser has access to bank statements because they’ve taken them all online, they insist no no, it’s fine I can take mum to the bank and sort things, you don’t need to take time off work, or mum doesn’t have a passport or driving licence for id because abuser has it, it can be almost impossible. Or the back say there’s a POA on the account, the attorney needs to be present.

second is when we actually did get a bank statement and OPG opened an investigation, it notifies the abuser. We had to get the parent out of their home and living with us first as they had no access to their own bank accounts.. Then when the OPG got evidence from the GP that parent was competent, they simply left it to them to withdraw the PoA and suggested taking it to the police or civil court instead as if no active PoA, they can no longer investigate.

to get OPG to investigate we would have had to allow the POA to remain in place, and allow the abuse to continue.

thirdly when the donor dies OPG authority again ends, and you’re dumped back in civil court for £££. The abuser has also changed the will to make themselves sole executor, so again only they could access bank statements and official documents, and without that the police have no reason to investigate, the bank with only act on complaints from you guessed it- the executor, even when they know there is an abuse investigation against them.

so you’re back paying ££££ for civil court to force the executor to produce documents.

@Cileymyrus I am sorry you have had to go through that. Sadly this is more common than most people realise.

It is shocking how some people value money over their parents and siblings well being, ethics
etc.

It is also shocking how the law, the OPG, Court of Protection etc. do so little to protect vulnerable people.

I am more fortunate as I spotted early on what was going on and I was able to step in and to stop further financial abuse. Recovering the money is a long process and requires a lot of patience and restraint.