Financial Abuse

Click on any of the questions below to reveal the answer:

When can a claim be made?

• When someone dies leaving a Will that excludes a person expecting to benefit from it.

• When someone dies without leaving a Will resulting in members of the family not benefiting from the estate.

• When a Will results in the distribution of the estate contrary to the apparent wishes of the deceased.  A claim may be possible against the professional adviser who prepared the Will (professional negligence).

• When there is evidence that the Deceased’s Will was made under duress or they lacked the mental capacity to make it.

• Where no provision has been made for someone despite a promise by the deceased that they will benefit (proprietary estoppel).

What are the time limits?

Where a claim is brought under the Inheritance Act 1975 a claim must be brought within 6 months of the date of the Grant of Probate.  Claims can be brought out of time – the Court will have regard to all the circumstances including the length of time itself, the reasons for the delay, how promptly the application has been made for leave once the right to claim has been discovered, whether there have been negotiations within the time limit and whether there has been distribution of the estate.  Claims about the validity of a Will do not have a time limit but ought, for obvious reasons, to be brought before the estate has been distributed.

What rights do same sex couples have?

The Civil Partnership Act 2004 provides equality for same sex couples after bereavement. The Act ensures that the surviving partner of a same sex couple is treated in law in the same way as a spouse.

If one partner dies, the survivor is entitled to bring a claim for financial provision against the estate under the Inheritance (Provision for Family and Dependants) Act 1975.  The claim can be brought if the deceased’s will or intestacy does not make reasonable financial provision for their civil partner. The level of provision is the same as for spouses.

However the position is different for unregistered same sex couples. What they are entitled to claim is limited to “reasonable provision for maintenance”. Also, a child that was treated by them as being a child of the family has no entitlement to apply.

There is a deliberate and marked distinction between provision for those who have registered as a civil partnership and those who have not. In the same way, heterosexual couples who cohabit rather than marry are treated less favourably under the Act than couples who marry.

A final note of caution for same sex couples: entering into a civil partnership, like marriage, revokes a Will (unless that Will was prepared in contemplation of the civil partnership).

How much will it cost?

There is a myth that anyone involved in a contentious probate or Inheritance Act claim does not need to worry because all the legal costs will be met out of the deceased’s estate.  This is wrong.

If you win, the general rule is that costs “follow the event” so your opponent should pay your costs.  But in any litigation you must be prepared to face the fact that you could be responsible for not just your own legal costs but those of your opponent if you are unsuccessful.  This is why it is so important that you get the right advice from a specialist in this area of law.

We can investigate your funding options: –

a) You may have legal expenses insurance (perhaps hidden in the small print of a buildings or contents insurance policy) which will cover your legal costs.

b) We may be able to act for you on a “no win no fee” basis. As these cases can be complex and evidence in support needs to be obtained, we may recommend that we carry out a fixed fee investigation into the merits of the case before we can offer a no win no fee agreement.  Depending on the circumstances, the cost of an initial investigation is usually capped at £1,500.00 including VAT (i.e. we will agree not to exceed that amount and it may be less).

c) You can instruct us to act for you privately on a pay as you go basis. We are happy to discuss capping costs (agreeing an amount that we won’t go beyond), or fixed fees for certain stages of work.

We understand that you will be anxious about legal costs.  We are clear and up front about costs and keep you regularly informed.  For a free no obligation initial discussion please contact us on 0843 289 4640.

I have discovered that my relative’s estate is worth significantly less than I thought it would be and I suspect someone has been helping themselves to his money, what can I do?

Unfortunately the answer to this question is not straightforward! There are often disputes that arise between beneficiaries who discover there have been transactions that occurred during the lifetime of the deceased which raise suspicions.

You need to establish whether the transaction was a gift or a loan. If it was a loan, then the recipient should pay the money back into the estate. You would probably need to establish documentary evidence of it being a loan – for example a contract, or a charge over property.

If the property was given as a gift, your options are more limited because it is the general rule that people can do as they wish with their own assets during their lifetime. You would need to establish that the gift was invalid. This could be by establishing that your relative didn’t have mental capacity to make the gift.

Another way of establishing that a lifetime gift was invalid may be through undue influence. Establishing undue influence depends upon the relationship between the donor and recipient and whether it is a transaction that calls for an explanation. You will need to seek expert legal advice about whether you may have a valid case.

Finally, a lifetime gift may be challenged under the doctrine of ‘deathbed gifts’ (donatio mortis causa to give it the proper legal name!) This is a gift which only takes effect on the deceased’s death, is made in contemplation of death, and the deceased must part with the gift or deliver it to the recipient absolutely. If any of these conditions are not met, the gift can be challenged.

In all cases if you have any suspicions, you should report your concerns to the personal representatives dealing with the administration of the estate. They then have a duty to investigate your concerns as they are required to collect in all assets of the estate.

I think someone is financially abusing my relative – how can I stop this?

Sadly, cases of financial abuse are on the increase. With an ageing population there are many more vulnerable adults who are risk of financial abuse.

If you suspect a crime has been committed, such as theft, you must report your concerns to the police. Secondly, it may be worth speaking to your Local Authority adult social services. All Local Authorities should have a Safeguarding Adults Board as required by the Care Act 2014. The board has to make appropriate enquiries when they reasonably suspect an adult in need of case is at risk of abuse.

The course of action that you need to take will depend on whether your relative has the mental capacity to deal with their own affairs.

If they do have capacity, they may wish to consider an Attorney. They may want to take independent legal advice on who to appoint as the attorney.

If they do not have capacity, you should consider whether it is appropriate to apply to the Court of Protection to be appointed as a deputy to deal with their affairs. The Court of Protection has wide powers to protect someone who lacks capacity, including prohibiting a named person from contacting someone who lacks capacity.

The Court of Protection can also authorise the Office of the Public Guardian to investigate suspicious activities.

My elderly relative has an Attorney / Deputy to deal with their finances, but I think they are abusing this power, what should I do?

If there is a registered Power of Attorney or a Deputy appointed, then concerns should be reported to the Office of the Public Guardian. They have a duty to investigate your concerns, and where necessary have a range of powers to order the attorney or deputy to account for their actions.

The powers of attorneys or deputies to make gifts during a person’s lifetime are limited. Gifts can only be made on ‘customary occasions’ and must pass an ‘objective reasonableness’ test. In reality this means an attorney or deputy should only give gifts to those people who the donor would have chosen to give a gift of his own accord and should be of an appropriate value. This would very much depend on the circumstances of the case.

If you have concerns about someone abusing their power, seek specialist legal advice. We can set out on your concerns on your behalf and report these to the OPG.

In addition to any investigations made by the OPG, we can also advise on whether it is appropriate to commence civil proceedings to recover the money and/ or have transactions set aside. If the victim does not have capacity we can advise on who is most appropriate to act as their litigation friend.

I am an attorney or a deputy facing an investigation by the Office of the Public Guardian; what should I do?

Attorneys have a number of duties and responsibilities towards their donor. These include, although are not limited to;

  • A duty of care to carry out the donor’s instructions
  • Not to take advantage of the position of the attorney
  • A duty of good faith and confidentiality

In addition, property and welfare attorneys and deputies have a duty to keep accounts and to keep the money separate from their own.

If you receive a letter from the OPG advising you that they are investigating your actions, this can be a daunting prospect. You should act quickly upon receipt of the letter, as you may be asked to produce certain documents to the OPG within a certain timeframe.

The consequences of being found to have abused your powers as an attorney or deputy could be far reaching, including being suspended, being reported to the police where the OPG feel a crime has been committed, or as a deputy your security bond could be called in.

Ridley & Hall have experience of representing attorneys who are asked to account for their actions as a registered attorney. If you are under investigation by the Office of the Public Guardian, contact us today for expert advice and representation on 01484 538421 or freephone on 0843 289 4640.