Girlings’ Contested Probate expert, Andrew Watson looks at the importance of differentiating between receiving gifts and actively poaching funds from a frail relative or someone’s estate.
It is often assumed, and not unreasonably so, that when it comes to money family members will always treat each other entirely fairly and with respect. Sadly my experience is that this not borne out in reality.
I used to think that this was because there are some rotten apples in all families and that the vast majority of people do behave properly. Whilst it is true that the vast majority of people do indeed behave properly, inappropriate behaviour in regard to funds and chattels goes beyond merely being a rotten apple and is actually a part of the frailty of human nature and the danger to yield to temptation.
For example, once a person becomes incapacitated or dies, those who have powers either as attorneys under a Power of Attorney or as executors in an estate, could be tempted, particularly if they are themselves financially strained, to deal inappropriately with family finances.
It is sometimes thought that an entitlement arises to the money of elderly family members as a result of services or assistance given. In reality no such entitlement exists and there is no relationship whatsoever between acts of generosity or kindness, and an entitlement to financial compensation.
Of course it is often the case that elderly people are generous with gifts and choose to leave legacies which are in themselves generous and also reflect help and assistance given during their lifetimes. The essential point is that this gift or legacy must always be the decision of the donor not the potential recipient.
It is easy though to pontificate about such matters and forget the fact that elderly people will quite often suggest to those nearest to them (and by nearest I mean geographically nearest) that they should benefit in some way more than others who maybe further away. It is hard in such circumstances for many people to refuse such offers or gifts and out of that friction can arise and before one knows it, allegations of fraud made.
It is essential therefore to differentiate between receiving gifts whether warranted or not and actively poaching funds from a frail relative or someone’s estate.
The basic position is that anyone taking funds which are the property of another is potentially guilty of the offence of theft. Where dishonesty can be established and the sums of money are significant, prosecutions can and do ensue. I have been involved in such cases and one in particular where the guilty party (who acted in an entirely reprehensible fashion) was sentenced to three years at Her Majesty’s pleasure at Norwich High Security Prison.
Establishing and proving fraud is difficult but not impossible. Often the best way to ensure against such behaviour is to instruct an entirely independent and often a professional person to be an attorney and/or an executor.
For further advice on this and other Contested Probate issues, contact Andrew Watson.