Legal query re wills and monies owed

[Captain Kernow]

Here is a little legal conundrum that has affected some people that I know. They do have access to legal advice, by the way, and will be following this up, but for my own edification, I thought I would seek views on here.

 

 

i) Person 'A' works all her life and draws a pension in her retirement. Sadly, she eventually passes away and leaves the entirety of her estate to her husband, Person 'B'.

 

ii) Person 'B' then passes away a couple of years later and leaves the entirety of his estate to his two children, Persons 'C' and 'D'.

 

iii) Now the pension provider of person 'A' has contacted person 'C' and alleged that there was a relatively small pension over-payment for person 'A' over an unspecified number of years and has said that they want persons 'C' and 'D' to pay back that sum.

 

 

My query is this - does the pension provider now have any legal rights to claim this alleged over-payment (a low 4-figure sum is claimed), some 4 years after person 'A' passed away?

 

Many thanks.

 

[Mike Storey]

I don't know about that specific, but I do recall, under English and Welsh law, that a civil debt expires after 6 years, if not claimed, so if the pension provider's claims go back further than that, I suspect they have no case.

[gordon s]

I can't advise you from a legal perspective, Tim but if the insurance company were not aware that Person A had passed away and continued to pay Person B the same level of pension, rather than a widows pension, then it is quite feasible they have overpaid.

 

I went through a similar process when my mother died.  Despite contacting everyone and sending off the death certificates to every financial institution, it took one pension provider several months for their administration to catch up and stop paying her pension directly into the bank.  I wasn't aware that was happening as the banks immediately closed and froze her accounts whilst probate was dealt with and I had no on line access.

 

The outcome was that we did receive a bill, in the high three figures which did need to be paid by the Executors of her will.

 

In our case it was only a few months, not four years, but I wouldn't be surprised if the same rules apply.

[Captain Kernow]

I can't advise you from a legal perspective, Tim but if the insurance company were not aware that Person A had passed away and continued to pay Person B the same level of pension, rather than a widows pension, then it is quite feasible they have overpaid.

 

I went through a similar process when my mother died.  Despite contacting everyone and sending off the death certificates to every financial institution, it took one pension provider several months for their administration to catch up and stop paying her pension directly into the bank.  I wasn't aware that was happening as the banks immediately closed and froze her accounts whilst probate was dealt with and I had no on line access.

 

The outcome was that we did receive a bill, in the high three figures which did need to be paid by the Executors of her will.

 

In our case it was only a few months, not four years, but I wouldn't be surprised if the same rules apply.

Thanks Gordon (and Mike) for the comments.

 

In this case, the pension provider of person 'A' was notified upon their death and the pension was stopped at the time.

 

The allegation about over-payment relates to an (as yet unspecified) period of time whilst person 'A' was still alive.

[gordon s]

I can't see anything regards a time limit, but you are not alone.  Your solicitor should be able to advise you.

 

http://forums.moneysavingexpert.com/showthread.php?t=5585115

[Trainshed Terry]

Seek advice from a professional pensions adviser. That is very important to get the correct advise for this problem.

 

I have had a similar with a family member, as it involved a family members home. The person in question wanted me to sign back the gifted third of the property back as he is scared that he will have to "inheritance tax" or "capital gains tax" as the advise that is on the internet is very dubious at time, let alone confusion

 

Terry. .   

[hayfield]

Thanks Gordon (and Mike) for the comments.

 

In this case, the pension provider of person 'A' was notified upon their death and the pension was stopped at the time.

 

The allegation about over-payment relates to an (as yet unspecified) period of time whilst person 'A' was still alive.

 

 

I guess from what you have written person B failed to notify the pension administrators that person A had passed away so person B should have received a reduced pension, I guess the pension administrators have a duty to the fund to recover the over payments. One thing to check is did the pension have a guarantee period where the pension would continue for a short period (this though normally for single life annuities). The pension company is dependant on the claimants informing them of any changes to their status, though the surviving claimant may well have been ignorant of this requirement.

 

Whilst I have no idea about the legalities, I would guess the pension company have a duty to reclaim these funds

Edited January 12, 2018 by hayfield

[Mike Storey]

The time limit is definitely 6 years for civil claims, as covered by the Limitation Act 1980 (and an amendment or two since) - for more info see https://www.inbrief.co.uk/claim-preparations/civil-claim-limitation-periods/

[DDolfelin]

Talking through my hat but, if the Wills have been probated does this impact the situation?

Seems a bit rough on persons C & D if the inheritance can be taken away - especially if it's already committed.

They haven't conspired in the acceptance of overpayments and in fact appear to be twice removed.

However, nothing would surprise me.

Will be interested to see what happens.

[Lady_Ava_Hay]

It has become a common practice for companies in general trying to pounce on overpayments but in general terms, although such a debt persists after death and is legally recoverable, it might be considered that a few years delay such as this with a further will in existence might be considered as unfair, particularly if there is no money left after disbursements.

 

IMHO and it is only opinion, any claimant against an estate can legitimately be asked for proof of debt and that any monies transmitted erroneously to a now deceased recipient will require firm evidence that the error was advised and repayment sought before they died or very soon after. This 'proof of debt' requires full documentation and copies of ALL correspondence and should be pored over with any professional assistance to see if it measures up.

 

The trouble is that these chasing companies very often don't use the Courts ( too expensive and fraught with pitfalls ) and just refer it to debt collectors. Very often they compound the error by chasing the deceased at the address on file but usually they only have the right to collect for three months then another one takes over. The older the debt gets the less likely that any collection company will take it on so eventually the harassment stops. This will leave damage on the credit file of the named debtor so if it is 'executors of' or even the deceased's name then it can safely be ignored.

 

I would still ask for proof of debt but do it anonymously through a solicitor or 'executors of' at the original address if you still have access to mail there or there is a postal re-direct in place.

 

The aim is to kick it about until lost or irresistible and the attitude that you win some and lose some helps immensely.

Edited January 12, 2018 by Lady_Ava_Hay

[Arthur]

I guess from what you have written person B failed to notify the pension administrators that person A had passed away so person B should have received a reduced pension,

 

 

My reading is that the alleged overpayment occurred whilst person A was still alive.

 

 

[quote name="Captain Kernow" post="2998509" timestamp="1515756113"

 

The allegation about over-payment relates to an (as yet unspecified) period of time whilst person 'A' was still alive.

 

.

[34theletterbetweenB&D]

...In this case, the pension provider of person 'A' was notified upon their death and the pension was stopped at the time.

 

The allegation about over-payment relates to an (as yet unspecified) period of time whilst person 'A' was still alive.

 While the pension provider does have a duty to recover over-payment, they will know they are on sticky wicket here, as the over-payment should have been detected at the time they received notification of death and closed the pension. A good solicitor specialising in financial law as relating to inheritance and wills will probably be able to reduce or eliminate this charge. It will firstly revolve around just when the alleged over-payment(s) occurred, per the six year rule already mentioned, so the first questions will be 'and over what time period did this alleged over-payment occur, and if the over-payment was terminated, why was recovery not attempted at the time?'.

[Metr0Land]

Talking through my hat but, if the Wills have been probated does this impact the situation?

I think it does. I had to handle the affairs of an elderly relative (using a solicitor) who had decided deliberately not to make provision for some family members who may have felt 'entitled'.  As an aside this was partly because she felt they'd 'had enough in her lifetime' and partly because they seemed to abandon her in later years.

 

Anyway, it seemed likely that probate would be granted and the affairs settled before they became aware she was even dead, so I asked the solicitor what the case would be if these family members came after some monies later on.  His advice was that once the estate was distributed any late applicants would find it near impossible to claim anything.

 

Using a solicitor also meant various steps had been followed such as advertising in the appropriate places required by law which may get overlooked if one does it onesself.

[DDolfelin]

There is no statutory limitation date on theft so (it could be argued) that accepting the pension was a form of this.

Of course, it was probably done innocently by an aged person but it could be alleged.

 

Involved in the throws of dealing with a healthy estate at present so any information is welcomed.

[Captain Kernow]

I guess from what you have written person B failed to notify the pension administrators that person A had passed away so person B should have received a reduced pension, I guess the pension administrators have a duty to the fund to recover the over payments.

I can confirm that person 'B' did indeed notify the pension administrators that person 'A' had passed away at the time.

Edited January 12, 2018 by Captain Kernow

[ian]

There is no statutory limitation date on theft so (it could be argued) that accepting the pension was a form of this.

 

To do that they would have to prove that the recipient KNEW that they were being overpaid and did not inform the pension company with the deliberate intention of keeping the money. Somehow I doubt they would have evidence for that.

[Edwardian]

The claim is, I would imagine, against the estate of B.  I would not have thought that a claim lies against C and D.

 

The right to claim any over-payment is fundamentally a matter of contract in the first instance.  I would expect the provider to have made provision for the reclamation of over-payments, even where proceeding from its mistake.  Of course, the contract would need to have bound B.  In any case, at common law a clause of action lies for money had and received where money has been paid mistakenly, so the absence a binding contractual provision dealing with overpayments is not necessarily fatal. So let's assume it's a valid claim.

 

B died 2 years after B.  We do not know when A died, therefore, we do not know when B died, or how long after B died that the claim was intimated.

 

We do not know the period in relation to which the alleged overpayment relates.  There is a suspicion that it might relate to the payments made to B, because the level at which payments should have changed at that point.

 

It is quite correct to say that the limitation for contractual claims is 6 years, but this is 6 years after the breach of contract.  When was the breach?  Well, here it could be when the repayment is refused, in breach of contract, not when the money was received.

 

However, in a money had and received claim, the limitation period might be considered to have started when the mistake was discovered, which is necessarily later than the payments.

 

From what we know, we must assume, until the facts are known, that a claim for some or all of the overpayment would not be statute-barred as out of time.

 

So, we turn to the other potential defences.

 

It should be noted that there does not need to have been any wrong-doing on the part of A or B, and it does not matter that the pension provider might have been negligent in making the mistaken payment.  On the face of it, if a Payer pays to A or B money to which they are not entitled, A or B are unjustly enriched and the law will require them to make restitution to the Payer.

 

This is  a relatively complex area, but the obvious potential defence is that of change of position. Where the defendant has changed its position following receipt of the enrichment such that it would be inequitable in all the circumstances to require it to make restitution, either in whole or in part, then the defendant will have a defence to a restitution claim.  However, the law generally requires there to be some detriment if the money is returned, i.e. that the defendant is made worse off by the return of the money than it was before the money was received, e.g. where the defendant does something as a result of, or in anticipation of, receipt of the money that would leave him worse off if the money had to be returned. 

 

It is by no means clear that this would be the case for B's estate, but each case is considered on its particular facts.

 

One thing is clear, before taking any action to recover the sums, the pension administrators must give full particulars of the dates and amounts, so that C and D can respond.   

   

[hayfield]

To be quite honest C&D should contact the pension provider and request details of what the debt actually is and how much is owed

 

Qoute

and alleged that there was a relatively small pension over-payment for person 'A' over an unspecified number of years

 

If it is a small sum, and the reason found acceptable it might be wise to pay up rather than racking up expensive legal fees, normally these companies know what they can and cannot do

[Captain Kernow]

B died 2 years after B.  We do not know when A died, therefore, we do not know when B died, or how long after B died that the claim was intimated.

   

'A' died in 2014 and 'B' died in 2015, sorry, should have made that clear.

 

If it is a small sum, and the reason found acceptable it might be wise to pay up rather than racking up expensive legal fees, normally these companies know what they can and cannot do

I believe the sum being claimed by the pension provider is in the order of between £1,500 and £2,000.

 

Personally, I find it hard to believe that any individual or company can make a claim on the estate of a deceased person, after that person's estate has been formally settled and probate applied in the correct manner (which it has in this case).

 

As someone else has said, I thought that going through the process of Probate drew a line under any such claims.

 

I find it even harder to believe (or perhaps 'accept' is the correct term) that such an organisation can then make any kind of claim on any of the beneficiaries of the will of 'B', who wasn't even the original person to whom the pension was allegedly over-paid.

 

If that was the case, then virtually anyone who has been left something in a Will, properly executed and disbursed, could be open/liable to claims from other parties, who for some reason didn't put their claim in before the Will was settled. That surely cannot be right?

Edited January 12, 2018 by Captain Kernow

[Edwardian]

'A' died in 2014 and 'B' died in 2015, sorry, should have made that clear.

 

I believe the sum being claimed by the pension provider is in the order of between £1,500 and £2,000.

 

Personally, I find it hard to believe that any individual or company can make a claim on the estate of a deceased person, after that person's estate has been formally settled and probate applied in the correct manner (which it has in this case).

 

As someone else has said, I thought that going through the process of Probate drew a line under any such claims.

 

I find it even harder to believe (or perhaps 'accept' is the correct term) that such an organisation can then make any kind of claim on any of the beneficiaries of the will of 'B', who wasn't even the original person to whom the pension was allegedly over-paid.

 

If that was the case, then virtually anyone who has been left something in a Will, properly executed and disbursed, could be open/liable to claims from other parties, who for some reason didn't put their claim in before the Will was settled. That surely cannot be right?

 

It's under the small claims limit, so every penny they spend to recover it is dead money.

 

In any case, no claim should be considered unless and until it is properly particularised and a letter has been sent conforming to the requirements of the pre-action conduct practice direction - in other words C and D should not have to face a claim that is not sufficiently explained.

[gordon s]

I also meant to say, I also had a claim from the Electricity supplier some months after my mother died. The amount was just over £100 and the first thing I knew about it was a letter from a debt collection agency.  My first thought was this was a scam, so I Googled the company.

 

I then found pages of info saying just how persistent this particular company were, so rather than contacting them, I contacted the Electricity company direct. 

 

When she sold her flat in August, all the readings were taken and the utility suppliers informed.  We'd never received a bill and of course by this time my mother had passed away.

 

I explained the situation and they went away to discuss it with seniors.  They came back in a few minutes and said they would write it off and inform the debt collectors accordingly.

 

There is nothing wrong with the Executor's contacting the company to explain the situation and see how the land lies.  They should be formal on one hand as the official Executor and that they have a legal obligation to ensure the financial affairs are dealt with correctly.  Then the good cop bit.  I would even go so far to say you will do your best to assist them, but this is going to be every difficult in view of B's death and the time involved.  All the Estate has been finalised and closed.  Appear helpful and request as much data as possible.  You may be pleasantly surprised and find they take a pragmatic view.

 

More often than not these letters are generated by computer.  It's not until humans are involved do they realise this probability of ever collecting that money is probably zero and they'll make a decision almost immediately.  If they write it off, then job done.  

 

If they persist then just keep asking for more and more info, query everything, use delaying tactics etc.  I suspect that the info would have been archived after all this time, so it won't be a case of pressing a button on a computer.

 

My money would be on the whole thing being dropped.

Edited January 12, 2018 by gordon s

[hayfield]

If it were a debt to a large company, then I guess the cost of recovery might well be seen to be uneconomical,

 

If it is a pension trust then either the trust or the rules applied by the body which oversees pensions may require the return of such funds (Charities have been accused in the past of being both uncaring and money grabbing when dealing with bequests) irrespective of the circumstances. Many pension funds are underfunded and or run by the pension rescue service, their duty is to all existing claimants, those applying these rules may have no other option in law 

[Barry O]

have you tried asking Horsetan? He is a dab hand at wills etc...

[Danemouth]

have you tried asking Horsetan? He is a dab hand at wills etc...

 

Please remember as a qualified solicitor he has to be very careful in giving advice since, if my understanding of the rules is correct he is liable for any incorrect advice even casually given in an informal situation.

 

Dave

[meil]

Please remember as a qualified solicitor he has to be very careful in giving advice since, if my understanding of the rules is correct he is liable for any incorrect advice even casually given in an informal situation.

 

Dave

Unless he makes it quite clear that his thoughts are given without full knowledge of the facts and that no reliance should be placed upon his thoughts.