Execution of will

[Katteasy]

I am the executor of my grandmothers will, who sadly passed away from dementia after being diagnosed with dementia 14 months prior.
Until 4 months prior to her death, she remained living independently with full control of her finances, access to her bank card and cheque book. She only received minor support from relatives and a career who only attended to encourage her to take her medication.

During the 14 months from diagnosis, my mother gave her children money via cheques which she wrote herself to her children who live a considerable distance away- At no point was this money requested by any of her children. This was not due to her wanting to reduce her assets etc as she was not aware of her diagnosis and there were no plans for her to stop living independently. One of these payments was refused by her child.

I am now at the stage of finalising the amount each beneficiary is entitled to. My grandmothers will simply states that her remaining money be divided equally between her 3 children. However I am being told by another relative that I have to deduct the payments made from the date of the diagnosis as 'lifetime transfers' even though they were never classed as these. Also, that she was vulnerable and unable to understand her finances (despite remaining to be solely in charge of them until her admittance into a car home as no deputyship or power of attorney was applied for)
If I do take these payments into consideration this effects how much each beneficiary gets and I want to ensure I am doing this correctly.

A) can I alter the terms of the will and deduct these payments from the balance owed to each beneficiary
B) what proof/documents do I need to make these alterations

I would like to keep it simple and pay each beneficiary equally as per the terms of the will but I know some will argue that the other payments should be taken into consideration due to my grandmothers dementia. I would like to know legally where I stand with whatever route I take

 

[nitram]

The terms of a will can only be altered if all beneficiaries left worst off by the changes agree, this is done by means of a deed of variation
https://www.gov.uk/alter-a-will-after-a-death

Without a deed of variation the residual estate has to be split equally between the three children.

Inheritance Tax on the estate may be due on the gifts
https://www.gov.uk/inheritance-tax/gifts
You have to do the calculations.

 

[love.dad.but..]

My understanding as executor you are bound to legally follow the will and instruction absolutely to your Grandmothers wishes so as she set out assets split equally and no you cannot alter the will. If the person thinks the will was made under duress or your grandmother lacked mental capacity then the person will have to legally challenge the will on those grounds. Otherwise I would have thought the monies already paid by her prior to her death are not relevant and should not be taken into account unless the person can prove through a legal challenge the above.

 

[sue38]

Where someone has died intestate (i.e. without a will) you do sometimes have to bring into account lifetime gifts made to a child, but not usually where there is a will.

You really need to take professional legal advice on this.

 

[nicoise]

As executor, you are required to execute your grandmother's will as it is written, and to make distribution according to the wording of the will.

I am being told by another relative that I have to deduct the payments made from the date of the diagnosis as 'lifetime transfers'

Lifetime transfers are usually financial matters involved with Inheritance Tax - does your grandmother's estate exceed the IHT threshold?

Also the "date of diagnosis" is a red herring - there is nothing in law or tax rules that applies in that instance. Date of Diagnosis does not indicate a lack of capacity from that day onwards - they are two separate events (usually).

You say that "my mother gave her children money" - should that read "grandmother", or was your mother making gifts from her mother's money to her own children (granchildren?), but that other family members did not benefit from those gifts, and that is what is now being questioned? Along with your grandmother's capacity to make gifts?

Can I assume there is a disgruntled beneficiary or two who feels they have missed out?

As to altering the will, there are rules as to what might be changed:

https://www.gov.uk/alter-a-will-after-a-death

I suggest that you would benefit from some legal advice to understand your position, and to clarify your position with the unhappy beneficiary.

 

[Kevinl]

Hi Katteasy, welcome to TP
As nitram says you can alter the will using a deed of variation but all the beneficiaries who loose out need to agree the changes, it seems that some people aren't aware of this from the posts here.
I would ask what the 3 children think and what they want to do, but do watch out as wills bring out the worse in people some times.
The one who didn't cash the cheque may not be bothered but then again they might feel they have lost out and of the 2 that did cash the cheque one may agree the deed of variation but the other may not causing a huge family rift.
If they can't agree then you have to split the money as per the will.
If I were one of the beneficiaries I'd agree the change because I wouldn't want someone to lose out because they thought they were doing the right thing turning down the original gift, but not everyone will see it that way.
K

 

[love.dad.but..]

That's interesting Kevini thank you I didn't realise that. It seems a difficult situation in this case. Personally I think a will should be followed even if it appears unfair to one beneficiary if they are not left equal amounts, as the will maker may have their own reasons for doing that and it is their right provided no duress and sound mind etc. In This case I can see how the beneficiary who turned down the gift before grandmother died might feel peeved could be tricky to sort out amicably though.

 

[Kevinl]

Personally I think a will should be followed even if it appears unfair to one beneficiary...

But would she have thought to go and change her will to ensure a "fair" distribution of the money happened? Would she and could she have been able to make a new will to reflect the declined gift after she was diagnosed.
As I gave significant financial assistance to one of my (3) children I really should change my will to reflect the fact one of them had a chunk of their "inheritance" early, but will I do it, probably not and then (in the unlikely event) I do get repaid change it back again to an equal split, probably to be fair to them I should but I probably won't.
Last thing I want is them falling out over it after I'm gone over who's already had what.
K

 

[love.dad.but..]

But would she have thought to go and change her will to ensure a "fair" distribution of the money happened? Would she and could she have been able to make a new will to reflect the declined gift after she was diagnosed.
As I gave significant financial assistance to one of my (3) children I really should change my will to reflect the fact one of them had a chunk of their "inheritance" early, but will I do it, probably not and then (in the unlikely event) I do get repaid change it back again to an equal split, probably to be fair to them I should but I probably won't.
Last thing I want is them falling out over it after I'm gone over who's already had what.
K

That's true..just shows how difficult it is in a will to satisfy everyone I suppose

 

[cragmaid]

Light hearted comment

You know what, reading this has made me think..... Having paid debts for one, kept a second afloat for years and loaned the third a large amount to cover unemployment costs, I will have to write a letter to keep with my Will telling my three that I love them all equally and that they are to forget any pre death loans/gifts and to divide any residue ( not that I am planning on leaving anything you understand) according to my Will.

Actually... point 2.... Must update my Will now that there are a multitude of grandchildren.

 

[relliot2014]

Keep to the Will!

Lifetime transfers... That is relevant to inheritance tax. Its completely irrelevant to the terms of the Will. You are entitled to deduct (&must deduct) all funeral expenses. (including mourning expenses) plus all debts incurred by the deceased eg household bills, tax etc, court costs ( if you need a Grant of Probate) credit card debts and loans etc and only then so you divide the estate according to the Will. Ie equally. Get a signed receipt from each beneficiary to confirm they have received their share. If you are unsure, the cab may be able to help. If you do have to get a Grant of Probate, you are going to have to instruct a solicitor to act on your behalf. They will deduct their reasonable expenses from the value of the estate.