If you are stuck in such a situation, here is what to do.

Mr. Arthur Pendelton, a resident of Oakhaven, was living with advanced dementia and had a Lasting Power of Attorney (LPA) in place for his health and financial affairs. He had appointed two individuals, Ms. Eleanor Vance and Mr. David Finch, to act as his joint attorneys. For several years, they managed his affairs as he was deemed to lack mental capacity and resided in a care facility under a Deprivation of Liberty Safeguards (DoLS) authorisation.

Unfortunately, the relationship between the two attorneys was fraught with conflict. Ms. Vance gradually marginalised Mr. Finch, excluding him from key financial decisions. Concerns were raised with the Office of the Public Guardian (OPG), which eventually concluded that the dysfunctional relationship warranted the removal of both attorneys. However, Mr. Pendelton passed away before the OPG could formalise this action.

Prior to Mr. Pendelton’s death, Ms. Vance, while in sole control of the finances, moved his money into various new accounts, ostensibly to secure better interest rates. During this process, she transferred a sum of £30,000 to her personal account. To this day, the reason for this transfer remains unexplained.

Following Mr. Pendelton’s death, both Ms. Vance and Mr. Finch were named as joint executors of his will. The probate process is now at a standstill. The firm hired to handle the estate administration, Sterling Estates Ltd., has advised that the £30,000 should simply be written off as a “gift.” Mr. Finch strongly disagrees, insisting that probate cannot be granted until the sum is properly accounted for and returned to the estate. He correctly argues that Mr. Pendelton, lacking capacity in a care home, could not have authorised such a gift.

Advice in such cases

The advice from the probate company is inappropriate and should be disregarded. The transfer of £30,000 by an attorney to themselves from the donor’s funds is not a gift; it is a breach of fiduciary duty and constitutes a debt owed to the estate. Mr. Finch, in his role as executor, has a legal duty to the beneficiaries of the will to collect all assets belonging to the deceased, which includes recovering this debt. Refusing to finalise the estate accounts until the matter is resolved is the correct and responsible course of action. The estate, through its executor, can and should pursue legal action against Ms. Vance to recover the misappropriated funds.

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of 100 GBP to 400 GBP depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored.

Applicable Sections of Law

Several key pieces of UK legislation are relevant in this situation:

• Mental Capacity Act 2005 (MCA 2005): This Act sets out the statutory duties of an attorney. These include acting in the donor’s best interests (Section 4), not taking advantage of their position, and keeping proper accounts. An attorney making a significant gift to themselves without authorisation from the Court of Protection is a clear breach of these duties.
• Fraud Act 2006: The actions of Ms. Vance could amount to a criminal offence, specifically “Fraud by abuse of position” under Section 4 of the Act. This applies where a person in a position of trust, such as an attorney, dishonestly acts against the financial interests of another.
• Administration of Estates Act 1925: This Act outlines the duties of an executor, which primarily involve collecting the deceased’s assets for the benefit of the beneficiaries. An executor who fails to take reasonable steps to recover a debt owed to the estate can be held personally liable for the loss.
• Theft Act 1968: The dishonest appropriation of property belonging to another with the intention of permanently depriving them of it could also be considered theft.

If you are the complainant

If you are the conscientious executor, like Mr. Finch, you must take the following steps:

• Hold your ground: Do not agree to sign the estate accounts or apply for the grant of probate until the issue is resolved. You have a legal duty to the beneficiaries.
• Formal Demand: Instruct your solicitor to send a formal letter to the other executor (Ms. Vance) demanding a full explanation for the £30,000 transfer and its immediate repayment to the estate. Set a clear deadline for a response.
• Court Application: If the other executor fails to repay the money or account for it satisfactorily, you can apply to the court. You can ask the court for directions on how to proceed, seek an order to have the other executor removed for her misconduct, and initiate a civil claim on behalf of the estate to recover the funds.

If you are the victim

The primary victim, Mr. Pendelton, is deceased. The current victims are the beneficiaries of his will, whose inheritance has been diminished by the misappropriated funds. As a beneficiary, you can:

• Demand Action: Formally write to both executors, demanding that they take immediate steps to recover the £30,000 for the estate.
• Threaten Legal Action: Inform the executors that if they fail in their duty to collect all the estate’s assets, you will consider legal action against them personally for the loss to your inheritance (an action known as devastavit).
• Apply for Removal: If the executors fail to act, a beneficiary can apply to the court to have them removed and replaced with a professional or alternative administrator who will pursue the debt.

How the police behave in such cases

This matter can be reported to the police via Action Fraud, the UK’s national reporting centre for fraud and cybercrime. The report should frame the incident as a potential Fraud by Abuse of Position. However, be aware that the police may initially classify the dispute as a “civil matter,” particularly as it is entangled with a probate issue. They might suggest that pursuing recovery through the civil courts is the more appropriate first step. A criminal investigation is possible but can be slow and is not guaranteed to result in a prosecution. The primary goal of a police investigation is punishment, not necessarily the recovery of the funds, which is better handled through civil litigation.

FAQs people normally have

• Can the other executor proceed with probate without my consent?
  

  If you are appointed as joint executors who must act together, then no, the other executor cannot unilaterally approve the estate accounts or distribute the assets. You can instruct the probate firm that all actions require your joint authority. If the will allows executors to act “jointly and severally,” one could potentially act alone, making it crucial to seek legal advice and place a formal block (a caveat) on the probate application if necessary.

  
  
• How can they claim the money was a gift?
  

  Under the Mental Capacity Act 2005, an attorney’s power to make gifts is severely restricted. They can only give gifts on “customary occasions” (like birthdays) to people related to or connected with the donor, and the value must be reasonable in the context of the donor’s estate. A transfer of £30,000 to the attorney themselves falls far outside these rules and would have required specific authorisation from the Court of Protection. The burden would be entirely on the attorney to prove it was a legitimate gift, which in these circumstances is virtually impossible.

  
  
• What happens if the money has already been spent?
  

  Even if the £30,000 has been spent, it does not extinguish the debt. The estate can sue the former attorney and obtain a County Court Judgment (CCJ) against her for the full amount plus interest and legal costs. This judgment can then be enforced against her personal assets, such as her home (via a charging order) or her salary (via an attachment of earnings order).

  
  

What evidence is required?

To build a strong case for recovering the funds, you will need to gather key evidence, including:

• The Lasting Power of Attorney (LPA) document defining the attorney’s powers.
• Bank statements from the deceased’s accounts showing the £30,000 transfer out.
• Any correspondence with the Office of the Public Guardian (OPG) regarding the conflict between the attorneys.
• Medical reports confirming the deceased’s lack of mental capacity at the time of the transfer.
• The deceased’s will, which appoints the executors.
• All correspondence between the executors and with the probate company regarding the dispute.

How long will the investigation take?

The timeline can vary significantly. A civil claim to recover the money is often the most direct route. After sending a formal letter of claim, if the matter isn’t settled, court proceedings can take anywhere from 12 to 18 months, or longer if the case is complex and contested. A police investigation through Action Fraud is typically a much slower process, often taking many months or even years to conclude, with no guarantee of a particular outcome. For the purpose of asset recovery, the civil route is generally more efficient.

Advocate Sudhir Rao, Supreme Court of India