Much of probate law is aimed towards future arrangements: what will happen after I die, how do I leave my estate to my children, whether to donate to the brexiteers or remainers.
Sometimes however, the law allows us to deal with matters when things have gone wrong. From a contested wills & probate perspective, ensuring the wishes of the deceased are carried out is hugely important.
There is provision in law to provide for those who, for whatever reason, have been wrongfully ignored in a will.
Conversely, there is also provision to undo actions which wrongfully, and without the backing of law, go against the wishes of the deceased.
Unusually, but perhaps setting a precedent for the future, the Proceeds of Crime Act 2002 (“POCA”) has been used in a probate scenario, when a son who stole money from his elderly mother was ordered by the court to repay it, or face the consequences.
Richard Willis, 66, discovered that contrary to his expectations, he would not be inheriting the lion’s share of his elderly mother’s estate upon her death. He persuaded his mother to make him her attorney, and then took around £700,000 of her money for his own use. Mr Willis bought himself a home, various vehicles, and other luxury items. When she died, his mother owned just two outfits.
Mr Willis was sentenced in 2015 to six years in prison for fraud. Having been released on licence, a POCA hearing was arranged. Mr Willis has been ordered to repay more than £500,000 within three months or return to prison. For the non-criminal practitioners reading this article, this is what is known as a confiscation order.
Assuming the money will be recovered from Mr Willis (a confiscation order is made against property/ goods that can be realised to make money) it will go back to his mother’s estate to be distributed in accordance with her will. Using POCA to satisfy the intentions of a will is not the first option to spring to the mind of a probate practitioner. However, it may be that this type of case appears more often as part of a probate caseload.
Mr Willis’ mother clearly anticipated problems when making her will –the reason behind not leaving Mr Willis much in her will was her fear of him frittering the money away.
Becket Chambers’ barristers have experience in both POCA cases and general probate matters.
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