I became suspicious of my barrister brother (David Cotterell) because of the way he was treating my mother, my sister and me. I was suspicious of his motives and wanted to understand the truth. What did my mother really want? Was David manipulating her for personal gain? I decided to ask them directly and record it – below are extracts from the recordings in both text and the actual recording.
My mother had told me and other family members for most of my adult life that she wanted to leave everything in equal shares to me and my barrister brother (David Cotterell). Her original Will reflected this. In recent years David had made an office at mother’s house, which didn’t seem strange at the time as she was in her 80’s and welcomed the help and he lived much closer than me. However, in 2014 I discovered that for the previous 7 years the house was 50% in David’s name and 50% mothers – no one had mentioned this to me. I thought perhaps my mother had changed her mind which would not be an issue as long as it was her choice and not David’s. The following recordings took place on two dates in June 2014. I am AC, my mother is IC and David Cotterell is DC.
Day one – Mother and me (no barrister brother David):
IC: I wanted it for you and David. So I went to the solicitors and discussed it. The only way that I could be absolutely sure it would go to you both was by putting it in David’s and my name
AC: Yes. That’s what it is
IC: and that’s what it is. . . And David, when anything happens to me, it would automatically
AC: go to David . . . .
IC: in David’s name. But he has promised me on the Bible . . . . That it’s half yours
AC: If . . . . let me just say Mother, it’s not. . . it’s what you want. It’s not what I want. I’ve got nothing to do with this. So that’s why I feel a bit difficult about this. Because, If you want to leave the house to David, that’s up to you.
IC: I don’t. I want it between you both.
AC: Yes, are you sure that’s what you want to do?
IC: Of course, of course.
IC: I don’t want to leave it to David. And he knows, and you know David better than that.
IC: Well the only thing I can do is talk to David about it. He has promised me on his honour that he will see you get half the house
AC: Everything’s in his name, all the bills everything’s in his name. In a Court of law, if David . . . . if something happened to you, David has complete control, absolutely over everything. He can do and he will stay, you mark my words, he’ll stay in this house. I have absolutely no doubt whatsoever. This is, the way he’s acting, you can’t see it because you are too close to it all the time, but I’ve seen it several times. But it did make me stop in my tracks, the last time I came here and he did that because I thought what on Earth. . . . I came to see you in your home and he came rushing out the door and before I even got level with the car, he said you can’t bring that dog in here! You know? When do you think I would ever do that to him? Would I ever? When have I ever been anything except honest and open with him?
IC: I can’t do anything
AC: But you can. All you’ve got to do is. . . . If you’re serious? If you want to make it even . . . .
IC: But you see . . . if I do that . . . . I would be in a fix without him . . I can’t cope without him . .
AC: What do you mean? Without him – what do you mean?
IC: If he didn’t come here . . you know . . . .
AC: What do you mean? What do you mean Mother if he doesn’t come here?
IC: If he got upset with me or whatever
AC: Mother – if anything like that happens. I will look after you.
AC: Do you think he would leave you in the lurch?
IC: I don’t know. It’s just that I don’t want the occasion to arise.
Day two – Mother, me and my barrister brother David:
Mother had spoken with David and he was now aware that I knew things that he had previously kept quiet.
Before David arrived I had a short discussion with mum . . . . .
AC: It’s just . . I just . . I can’t sleep or anything because I don’t like this. I don’t like upsetting you. I can’t understand the David thing. I just thought the easiest thing was just to put a few things down in a letter and give it to you. I didn’t think you’d be up. I thought perhaps uhm . . I’d just put the letter through the door and leave you to it . . . because I don’t think that . . .
IC: And what do you want me to do with it – Sign it?
AC: No, not at all! It’s a letter from me to you for you to read. Nothing else. . . Nothing else. . . I don’t want you to sign anything Ma. I don’t want that. . . I don’t want that. It’s only a short letter. You can read it now while I’m here. . . Whatever you want? If you want me to go, and you read it? If you want to read it while David’s here? You can do whatever you want. I don’t want to put any pressure on you.
IC: I’ll read it in a minute, ‘cause I get very upset. I told David yesterday and uh he actually . . . he said . . . he cried, he was upset. He said this is the last thing I wanted. He said do you trust me Mum? I said of course I do.
He said, Do you think Andrew doesn’t trust me? And I said he’s your brother, I would think he did. He said have I ever broken my word on anything I’ve ever done? and I said no. He said . . . I said I don’t want you to get cross. He said I’m not cross, I’m just sad. He said do you think that I would do my brother out of what you want him to have and I told him I love you both and I want you both to have the same and he said . . .
AC: I don’t want you to get stressed Ma, so if you don’t want to talk about it don’t say anything. . . . . .
IC: I know. He’s afraid. He doesn’t want you to lose out
IC: . . . . and he said I certainly don’t want the house sold and he said the thing is that by doing it this way it’s clear, it’s clear of all . . . He said that what would happen . . . the rollover from Dad’s tax . . .the rollover . . . and from mine would eat up this house and there would be nothing. This house would be gone. He said, because the boys would just sell it to pay off the tax rather than take it out because you’ve got the other properties between you.
AC: There will be tax on that at 40%
IC: And this house as well. Plus all the tax that Dad would have to have paid. No tax was paid when Dad died. And he said believe you me, it’s a hefty sum, it would swallow up this house and there would be nothing and he said I don’t want to lose the house. And the only way to save it . . .is they’ve changed the law again now, because so many people were doing exactly what I did to make it over to one of the children so It’s passed over and then shared out and they’ve twigged on to how many people were doing it and you’ve got to live seven years which we have done. But even so, if it was altered now, it would come under the new law. And David said . . . .
AC: You don’t have to alter it
AC: You don’t have to alter it
IC: He said there’d be a lot more tax . . .
AC: No. You don’t have to alter it. David knows. David’s a lawyer. You just leave it to the lawyers. You don’t have to alter it Ma. It’s a Declaration of Trust. That’s the beauty of a Declaration of Trust. It keeps it exactly the same. So if David’s telling you it changes that, he’s telling you Porky Pies (lies). It’s not true.
IC: I know his main concern was for you. He doesn’t want you to lose out.
AC: Yes, Well . . . Difficult times . . .
DC: Up to a point
AC: Well probably shock factor more than anything I think . . .
DC: There it is. It’s all been done with the best of intent.
AC: Yes. I mean let me start by saying I absolutely don’t want to upset you, and I don’t want to upset Mum
DC: All right
AC: But more than anything I was just surprised. . . . .
Long silence as David walks over from coffee machine
IC: What you have got to do is agree and you both know what I want. And David doesn’t want the house sold, obviously. He wants to use it as his home.
AC: I can understand. It is very difficult because it’s not nice to talk about anyway and you know you and I spoke about it years ago and we said leave it.
IC: Yeah it makes me feel that I’m . . . . . (quivery voice)
AC: Don’t think about it too much Mum. Don’t just . . don’t get, you know. . . .
DC: If it’s any consolation, Sue doesn’t know anything about this. I’ve never told Sue. I never discuss anything like this with my wife.
DC: It’s none of her business.
AC: Bloody Hell! . . . Gosh. . . .
IC: It’s between you two boys.
AC: I can see . . . . . Are you still in rough patch with Sue or?
DC: Point of Equilibrium. I don’t think we’re any different from anybody that’s been married 20 years to be honest from what I can observe.
DC: Well there it is. It’s what we originally intended. I’m quite clear on that. It’s all quite clear.
AC: Okay. . . . What I said to Mother, for example . . . because I have no control things, I have to trust you 100% if something happens.
AC: Which I’m a little uncomfortable with.
AC: For the reasons in that letter. You know . . . Be that as it may
DC: I think that’s misplaced but there we are, okay.
AC: Not okay. We’ll come back to that. Why didn’t you tell me then? You should have told me.
DC: I didn’t tell anybody.
AC: Well, that doesn’t make it right.
DC: In my view that was entirely the right thing to do.
AC: In my view it’s not.
DC: Well there we are. We’ll differ on that.
AC: I think that the safest thing or the right thing all around is for you to talk to your solicitor, for me to talk to my solicitor and get something drawn up which executes exactly what Mum wants, but gives you . . . because I understand you want to stay here and I have no problem with that whatsoever. . . . . It can’t be sort of an open-ended thing. Let me just say first of all Ma, you absolutely want to split it 50/50 between me and David?
IC: Yes, of course.
AC: You’re absolutely sure?
IC: Yes, of course I am. David’s always known that.
DC: Yep – Okay.
AC: But it can’t be open-ended there needs to be something in there. . . . and I don’t quite understand how that would be but there would need to be something because 40 years on, you could still be here and not pay me . . .
AC: Which puts me in a difficult position. . . .I mean just put yourself in my position the other way around, what would you want to do?
DC: Well, there it is. I mean, I have to say. I am very reluctant to move away from the arrangement that currently subsists. I understand what you are saying. I will think about it. . . . I think that’s all I can say.
AC: It’s nice speaking clearly while all three of us are here. . . . Because what I’m nervous about is then different pressures may be brought to bear. . . Mum is here. . . We’re all calm. If what Mum wants . . . if you’re happy with executing what Mum wants?
IC: David does want what I want
AC: Okay well then, in that case why not get it tied up legally so there is no doubt at all. Is there any problem with that?
IC: No, not really. Is there David?
DC: I want to think about it Mum. I want to think about it.
AC: Why do you need to think about it?
DC: I . . . I . . . .Because I have to say the way this has all developed has been . . . . . . difficult for me to absorb. I want to think through the full consequences of what’s being suggested. I want to . . . because we are now, it seems, in the habit of telling everybody what the arrangement is, I want to think through the full consequences of how that sits.
AC: Why exactly?
DC: Because I do. Because I’m not going to be . . . I’m not going to be cornered into supposedly agreeing to something now which for whatever reason later on might feel is not the right thing to do. I’m quite clear in my mind . . .
AC: From what perspective?
(Very Long pause)
AC: From a monetary perspective?
DC: Ahh . . . I . . .I . . .
(long pause again)
DC: as a point of principle, I don’t . . . . you’ve come here unannounced. . . . I have to say, yesterday, I was . . . . . . .
DC: Well, I was disappointed to be honest by your reaction, if I have to be perfectly honest . . .
AC: As was I, by yours
DC: Well there we are. There seems to be . . . there seems to be a misunderstanding on that point.
AC: Only from your perspective
(long pause again)
DC: Well . . .
AC: Let me remind you of something. In 2005 . . .
AC: You and I had a conversation about death duties. And I said to you, would it not be a good idea to try and talk to Mum and to sort something out? You said to me very clearly, that you didn’t care about the monetary side of things at all, as far as you were concerned, anything we had was a bonus, and it was Mum that was important. . .
DC: Well, I think . . .
AC: And you didn’t want to upset Mum at that point. And I said to you, absolutely fine David. That’s fine, we’ll leave it at that. And I assumed that you were a man of your word at that point which is why I haven’t even thought about it since.
DC: Okay, well if . . .
AC: So what has changed since then?
DC: Well firstly I don’t accept that that was a conversation that we had . . .
AC: What do you think the conversation was about?
DC: Well firstly, you’re not being. . . I don’t have immediate recollection of what you’re talking about
AC: I do. . . Very clear.
DC: In what circumstance? When exactly?
AC: We were at Southill and we talked about this, because I had people around to talk about our position and it was fresh in my mind and I asked you. . . And I remember thinking at the time, okay fair enough, you’ve got a point and I don’t want Mum to be upset.
DC: Well I think your recollection suits your posit . . . suits your uhm conceptions
AC: Okay. Well let’s just say, you can make that wooly – as wooly as you like.
DC: Well No
AC: Well Say now, what do you want now then?
DC: I . . . . . . . . . (very long pause yet again)
AC: Do you want that now or would you say you that’s not what you want now?
DC: No. There was an arrangement 7 years ago, which . . . . . (sigh) you are proposing now to make substantial changes to, to by my perception . . .
DC: By my perception
AC: Just making something legally binding that Mum wants.
AC: Let me ask you a straight forward question without trying to manipulate the situation . . .
AC: Do you want what Mum wants?
(very very long pause yet again)
DC: Yes. I want to understand exactly what Mum wants.
AC: In that case, well, Mum you tell him what you want.
IC: David knows what I want. I want you both. . .
everything left half each. . . half the house each. And David wants to live here and I want him to live here and the only way he can live here is by giving you half the money when the house is valued. But it will have to . . . there’ll be a lot of tax to pay anyway on the other properties won’t there?
IC: So whether David will have enough money to pay half out I don’t know. Tell Andrew about the other properties. You won’t get the money for those immediately will you? Because they’ve got . . . they’re mortgaged or what? What was it you said?
DC: What will happen is that the death duties that have to be paid will be uhm effectively paid by allocating a share of liability to each property. The properties will then be divided. The best way of realising the funds to pay those death duties is to mortgage them, not to sell them . . . because they are income producing properties. There will be an element of tax which will apply to this house as a share of the estate.
AC: But this house is outside the estate.
DC: It’s not.
AC: So this house is part of the estate?
DC: This house will be assessed alongside the shops
AC: I don’t understand that. Why is that the case, because this house was in Mum’s name, not Mum’s and Dad’s name?
DC: Yes. But the liabilities of death duties will be triggered on Mum’s death, in relation to Dad’s legacy or Dad’s bequests.
AC: And does this house get specified in Dad’s . . .
DC: It will be aggregated.
AC: Okay. Well I’ll take legal advice on that
DC: Okay – You can.
AC: So to continue. . .
DC: So to continue. Once the total quantum of tax liability has been ascertained, it then has to be paid before you get a grant of probate.
Now, at that point, there will be the opportunity to work out the net receipts after tax. In those circumstances, I will pay you half the value of the house, but not immediately. It will take me a while to get the funds together.
AC: What do you call a while?
DC: Probably no more than 5 years.
AC: Okay, but that could easily be tied up legally, because if you leave it open then anything could happen. And if you were in my position, you would not want that.
DC: Right. Okay.
AC: Would you?
DC: I will give some thought as to how that can be recognised in a Declaration of Trust.
DC: Anyway there it is. I don’t think it’s going to be particularly profitable discussing it any further at this point.
AC: Well, I would like to know – You stopped halfway through what you were saying there. . .
DC: I’ve said what I’m going to say at this point.
AC: You know, I absolutely . . . and I’ve said to Mum, I’ve absolutely acknowledge that you’ve put a lot of time and effort into looking after Mum, I absolutely know that, but I wouldn’t put a monetary aspect to it all. But having said that, having actually said that. . . I was up this morning at 4 o’clock because I couldn’t sleep. And I spoke to Tracey this morning and she actually said exactly what you just said actually. She said to me she said, actually, David has gone out of his way with your Mum. He has looked after her. . . He has been there and he deserves the lions share.
AC: Uhm. Well I thought I would say it because I knew that was always on your mind.
DC: Well . . .
AC: But I don’t think . . . Well, I didn’t think this was about money? I thought as you said in 2005 it’s about looking after Mum. I’ve said repeatedly to Mum . . . have I not? That actually, maybe you want to give more to David? Haven’t I?
AC: But I didn’t think this was about money?
IC: No, I didn’t either.
AC: But, you know, you need to think about it. . .
DC: I do
AC: And I would ask you David also . . . because you are not being totally honest. . . because You will remember the conversation we had in 2005.
DC: I don’t remember the conversation that we had in 2005
AC: It’s very uncharacteristic. Even so. Let’s say you don’t remember it. Even so, I do think that you must feel that not saying anything to me is somewhat dishonest?
DC: No. I don’t think it’s dishonest.
AC: The fact that you don’t think that . . .
AC: Is very strange.
DC: Well your perception of that is entirely a matter for you. I have done . . .
AC: I think any normal person’s perception. . . If you asked, for example, the rest of the family if they thought it was dishonest, I think I know what they would say.
DC: I’ve done entirely what I think is appropriate.
AC: Anyway, look, we’ll leave it at that I don’t want you to get upset Mum so let’s leave it at that. I think that you need to have a think.
IC: It just worries me that this has happened.
AC: Well, I didn’t do any of it. I was the party outside. . .
IC: David is only thinking of me too.
AC: Well. (long pause) If he was thinking of you completely, then he would do exactly what you’ve just asked.
IC: Well, He will. He’s going to. . .
AC: I don’t think he will. But we will see. Time will tell.
My mother passed away only a couple of months later and my barrister brother David now lives in her house and has refused to honour his promises as expected. Worse than that, as sole executor he has also attempted to keep estate funds (approx. £70,000) on the grounds of survivorship as they were in joint names (his and my mothers) – we issued proceedings and he has now agreed to our demands. However, he continues to refuse to pay half the value of the house as he had clearly agreed in front of my mother in 2014. Worst of all – he neglected to call me to tell me she was dying and I could have been there, and that is something that all time cannot fix.