Error by a solicitor - what happens?

bobbysands81

What would happen in the following scenario?

A person who owns a house and estate (and who does not have a will) passes away.

The estate is sold off and proceeds are administered to all 6 surviving family members.

However, the solicitor who was in charge of sharing out the money realises he has made a mistake and only split the money 5 ways and sent cheques to 5 people, instead of 6.

He admits the mistake is his and writes out to the 5 people requesting that they return a portion of the money to him in order that all 6 people get the same amount.

What happens if one (or more) of the original 5 refuses to return part of their money? Is the solicitor liable for any mistake that he has made?

Tom Young

Technically he is, but the person(s) in receipt of the amount under the devise/will are also taking in excess of the amount allotted. The solicitor or executor could sue in respect of this. The person number 6 could sue in professional negligence.

I'd advice the solicitor to stop the cheques myself (but that's not legal advice).

The solicitor could sue in respect of the amounts withheld and then number 6 could sue for professional negligence, unlikely to be a hugely material matter and most likely to settle without issue.

Jo King

Each of the persons who received an excess would be deemed to be holding the excess in trust for the estate. The solicitor could sue anyone who refused to give back the excess money. The only issue for the sixth person might be delay in being paid. Whether it would be worth suing the solicitor would depend on the circumstances. If the error was discovered quickly and the money recovered immediately the loss would be only a small amount of interest.

Victor

Tom Young wrote: »

I'd advice the solicitor to stop the cheques myself (but that's not legal advice).

Stopping a cheque may be legally difficult these days, certainly writing a cheque without the intention of honouring it is an offence.

Tom Young

Victor wrote: »

Stopping a cheque may be legally difficult these days, certainly writing a cheque without the intention of honouring it is an offence.

I know that your spot on with the offence, but it is still possible to do it and claim material error that is all of course dependant on the traction on has with ones bank.

Rhonda9000

As far as I am aware -and from previous experience- it is fairly straight forward to instruct the bank to immediately stop an uncleared cheque by quoting number, payee and amount and signing a piece of paper... and evidently not a legal rigmarole

Jo King

Stopping a cheque is a simple administrative procedure. Difficulties might arise if it is established that the cheque was issued in order to induce the payee to provide goods and/or services in return. It may be theft in some circumstances to stop the cheque. This is a side issue from the original post. If the error is discovered between the time the cheques are issued and presented for payment, which could be a matter of days, then stopping the cheques and isuing fresh ones is the correct procedure. If the cheques have been negotiated then they cannot be stopped. The solicitor will have to ask for the excess money back from the payees.

mountainyman

A constructive trust has been created in which those who have received the money are holding 17.5% of the payment received on behalf of the 6th person.

Professional negligence will not arise UNLESS the 5 payees have spent the money and are now indigent. To receive damages for negligence on must show loss.

That 17.5% must not be spent by the payees subsuquent to their being informed of the mistake.

MM

Victor

How do you get 17.5%?

axer

Victor wrote: »

How do you get 17.5%?

16.67% + 0.8% = 17.5% Simple maths really

Jo King

axer wrote: »

16.67% + 0.8% = 17.5% Simple maths really

16.67 + 0.8 = 17.47. Simple maths. Each of the wrongly pay people would have been given 20% rather than 16.67%. So what is the relevance of the 17.5 %?