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claim against the estate

Re: claim against the estate

Postby mr_c » Thu Dec 17, 2015 12:33 pm

Firstly, I would like to thank you all for your advice through out my long fought battle with my sibling regarding the estate.
Since I last posted we have had a trial in which the Judge had no hesitation ruling in my favour and he was to bare the costs of both parties.
I am relieved at that verdict as I would not be have been able to pay costs had it gone the other way.

The Judge agreed that he brought a case without first determining if he had evidence to support his claim against the estate before embarking on court action as he had hoped to obtain evidence before it progressed to court. The Judge was critical of his solicitor who should have advised him to produce evidence before mounting a claim against the estate such as capacity and forgery which he cited as the main reason for proceeding with court action. This failed on both limbs due to the independent witness reports however, he still choose to pursue his last claim to have me removed as executor which was ridiculed by my barrister as the 'last act of a drowning man'. and therefore, he failed on all 3 accounts.

I would like to thank you all for your advice over the years and hopefully I can start to live a little bit now. The question is will I get all my money back or not. My solicitor says I should but as you have guessed I do not really listen to him.

Thanks
Mr C
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Re: claim against the estate

Postby atticus » Thu Dec 17, 2015 12:47 pm

Well done, good result.

If nothing else, you may be able to deduct costs from your brother's entitlements from the estate.
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Re: claim against the estate

Postby mr_c » Mon Feb 08, 2016 1:04 pm

Dear Sirs,

Since being awarded the costs of the claim against the estate my brother who was ordered to pay my costs as well as his own, has defaulted twice. He solicitor has contacted my solicitor (and without consulting me ) my solicitor agreed to two further extensions. He has extended twice up since the court order and has failed to pay a penny. It has since emerge from his solicitor that he is selling his property as his wishes to relocate to another country and the matter in now with the conveyancing solicitor. I was unaware of this and I believe this has been his plan all along. I have instructed my solicitor to take the matter back to court and get an injunction on the property until I am paid my cost incurred in defending the estate.

I am unsure as what to do next. my solicitor as I have always said is useless and now with the case won he is still dithering. I would appreciate any advice on dealing with this attempt to avoid paying costs and what my legal stance is before he sales the property and disappears.
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Re: claim against the estate

Postby atticus » Mon Feb 08, 2016 1:10 pm

Your solicitor is so useless that he/she wins cases for you!

Has your brother been asked to give a charge over his property?

Have you applied for a charging order?

These two courses may be cheaper than an injunction.

Do you think that your brother may have other resources than his house which can be used to pay the costs awarded to you? Is anything due to him out of the estate which can be set off against his debt?
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Re: claim against the estate

Postby mr_c » Mon Feb 08, 2016 1:20 pm

My solicitor is useless as I drafted all of the letters that went back and forth to his solicitors as well as the courts as well as writing my own witness statement. In fact the real hero was the barrister who took charge of the case and defending me aggressively, so I stand by my statement that the solicitor is useless.

Regardless, he has been sitting on the above information without relaying it to me I only found out this morning. The instructions you mentioned is what I told him to do (not what he asked me to do). Hence, I am looking for a response as to whether my instructions were right or what other proposal I should present to him to deal with this situation as he has been sitting on this dilemma for nearly two weeks doing nothing about it not even calling me to update me on the situation, I had to call him hence, my annoyance.
Last edited by mr_c on Mon Feb 08, 2016 1:29 pm, edited 1 time in total.
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Re: claim against the estate

Postby mr_c » Mon Feb 08, 2016 1:28 pm

atticus wrote:Do you think that your brother may have other resources than his house which can be used to pay the costs awarded to you? Is anything due to him out of the estate which can be set off against his debt?


No. his house is the only thing of value to pay of the ridiculous cost of defending his nonsensical claim against the estate.
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Re: claim against the estate

Postby atticus » Mon Feb 08, 2016 1:41 pm

So the house has to be sold. Charge/Charging order seem obvious ways forward.
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Re: claim against the estate

Postby mr_c » Mon Feb 08, 2016 3:24 pm

Thanks Atticus, I have presented that option to the solicitor and he seems in agreement.
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Re: claim against the estate

Postby mr_c » Tue Feb 09, 2016 9:52 am

How long does it take for a charge against the property to be agreed by the Judge?
I believe that the current stage of his house sale is at the final stage (exchange of contracts) and therefore, I would like to know if the charge against the estate can be accelerated? I believe his has a conveyancing solicitor acting for him.
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Re: claim against the estate

Postby atticus » Tue Feb 09, 2016 10:05 am

These things can take a few weeks. It varies from Court to Court.

Get your solicitor to request a suitable undertaking from his, if he won't give a charge.
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