I've got a nasty notional capital case that might turn on these questions...

Can a grant of probate be undermined by a verbal agreement akin to an unwritten will.

Can I argue that the person in who's account the capital in question resided didn't have legal ownership of it despite the probate? Alternatively could I argue that upon request the legal ownership reverted to the person into whose benefit the agreement fell upon the death of the person who was intestate?

Probate's a bit out of my sphere and there's no "estate law" SSU to ring up so as my mum said there's no harm in asking.

No, a grant of probate is only issued if there is a will. A person who is granted probate has made a promise to the court to administer the estate in accordance with the will. Your only chance would be to show that the will itself is void or challengeable by, say, the existence of a later will.

Need more info’ re – your second question.

As a former probate solicitor I have a hunch that you may be talking about a secret trust.

This is where a testator leaves money on the face of the will to A, but before the death A has promised him/her that he will in fact pay the money to B instead. Used to be used a lot in Victorisn times to leave money to mistresses and illegitimate children via a discreet friend.

If thre is a secret trust then it is as much a trust as any other sort and on these facts A has no beneficial interest in the money at all and is under an obligation to pay it to B pdq. The difficulty is likely to be:

establishing that there was an agreement in the first place, since it is unlikely that there is documentary evidence of it; and

establishing the terms of the agreement: was it a clear agreement to pay the money over or was it just "you'll see that B gets soemthing, won't you?" which would probably be void for uncertainty.

Surprisingly there is Commissioners' case law on secret trusts which confimrs that the doctrine applies just as much to benefits as anything else.

Or am I completely barking up the wrong tree?

It is possible to do a Deed of Variation within 2 years of the death so that a beneficiary gives up his/her inheritance in favour of someone else. I believe this can be done with intestacies as well as wills, but it would have to be done before the estate is wound up. Also, if - as I assume (maybe wrongly) from your post - the wish is that a benefit claimant does not receive the inheritance, would this not be treated as deprivation of capital?

Or are you talking about a death bed gift? (he says pretending he can remember what they said in law school...!)

looks like we all need much more info.....

The person who passed away died intestate, and i'm told mum applied for probate as son who had what seemed to be a trust was in the middle of divorce wranglings so wanted to protect the estate from that.

Is that enough?

Btw, if there's commissioner's jurisprudence that goes beyond la la la... exercise of fact... la la la subjective test la la la credibility, then I'd like to hear about it.

ta all

D

"The person who passed away died intestate, and i'm told mum applied for probate as son who had what seemed to be a trust was in the middle of divorce wranglings so wanted to protect the estate from that"

not really as it doesn't make too much sense.. if person died intestate no trust was created.... mum must have applied for grant of letters of administration ...

i thikn your client needs a probate/trust person to advise re that side of it.

do i take it your client is mum?

and does son's divorce lawyer know about the intestate estate? if not, should..... the son has full duty of disclosure of all assets, i seem to recall, but i'm not a divorce lawyrs...

"the son has full duty of disclosure of all assets"

b*gger, there goes my last shred of credibility...??

Like Claire I think you may be a bit out of your depth. There's too much fact-finding to do on the non-benefits side, and a certain amount of legal studd, before you can establish the impacts on benefit. It can be very hard to know the right questions to ask if you are outside your speciality.

I know that, that's why I'm posting here!

"I know that, that's why I'm posting here!" said Dan......

i think you need a specialist solicitor on the probate front, and your client needs to confess all to his divorce solicitor (who probably has a probate colleague)

once you have the CORRECT answers to the various questions, you will then be able to consider the benefits side with much more clarity.