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Forum Home  →  Discussion  →  Other areas of social welfare law  →  Thread

Can the DWP really do this!

J.Mckendrick
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Welfare Benefits Team - Phoenix & Norcas

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Joined: 16 March 2012

Client’s mother unfortunately died earlier on in the year and left a small will which resulted in the client and three (3) other relatives receiving money from the said will. Client was left to sort out the distribution of the will between himself and the other relatives as per the instructions of the will itself. This has now been done.

Some time after the distribution of the will he is contacted by the DWP instructing him not to distribute the funds left in the will as there was a strong possibility that the deceased mother had received income based benefits whilst having in excess of £16k. This not being known by the client and relatives. It looks like the DWP are suggesting that if there was some sort of benefit overpayment then the money can be clawed back from the money left in the will which has already been distributed. Can anyone one please advise me of the following….

I) Has the DWP any right at all to chase the client for any back-payment of benefit overpayment.
ii) Am I right in believing that the debt is cancelled out after the point of the mother’s death.
iii) Can the DWP be ‘estopped’ from trying to claim back any overpayment.

Any advice would be appreciated.

ClairemHodgson
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Solicitor, SC Law, Harrow

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briefly - i don’t do probate - but i understand that an executor (which appears to be what your client is, from what you said) should be dealing with issues round benefits/stopping them/etc as part of the duty to wind up deceased’s estate

however, google being useful i found this from Hugh James

https://www.hughjames.com/news/comment/2016/09/dwp-claims-estates/#.WbJkGnaGM2x

HTH

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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Yes,contrary to some popular belief debts do not die with the death of the debtor.  An administrator is legally responsible to deal with the estate according to legal rules.  One of these is to advertise for potential creditors and wait for a certain period (2 months if memory serves) before distributing the estate.  A failure to follow these rules can leave the administrator open to action through the courts for recovery for loss.  Furthermore, the creditor can trace the debt into the hands of beneficiaries if rules are not followed and recover from them after distribution of the estate.  Your client needs legal advice asap.

Dan_Manville
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Mental health & welfare rights service - Wolverhampton City Council

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nevip - 08 September 2017 11:39 AM

  Your client needs legal advice asap.

I had something similar a few years ago and I can only second this advice; there might be criminal sanctions on the horizon.

 

ClairemHodgson
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Solicitor, SC Law, Harrow

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and in the meantime she probably needs to be trying to get the distributed money back from the beneficiaries.  otherwise she’ll be on for it herself.  (assuming, of course, the DWP are correct, which is another question altogether)

Oldestrocker
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Principal - Forensic Accountants, Canterbury

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nevip - 08 September 2017 11:39 AM

Yes,contrary to some popular belief debts do not die with the death of the debtor.  An administrator is legally responsible to deal with the estate according to legal rules.  One of these is to advertise for potential creditors and wait for a certain period (2 months if memory serves) before distributing the estate.  A failure to follow these rules can leave the administrator open to action through the courts for recovery for loss.  Furthermore, the creditor can trace the debt into the hands of beneficiaries if rules are not followed and recover from them after distribution of the estate.  Your client needs legal advice asap.

It is only common sense for any executor or administrator to ensure that all debts (known and unknown) due to be paid out of the estate before distribution are settled.
This is normally carried out with two newspaper adverts (one local and one national) and the London Gazette. There is a time frame given during which all debts have to be proved. If someone comes along months later they would not be entitled to payment.

To make a final distribution without this protection is really asking for trouble.