Advice about helping my mum change her will

[MTM]

Hi,

My dad and mum both have dementia. Dad is in a home in the late middle stages and Mum is still living at home and gets on fine, with carers to help her, although she is getting very forgetful. Their house, is in their joint names but their investments/cash are separate. Dad's life savings have run out and he has a fully-funded place at a local care home, although because Dad has a work pension, fully-funded, in our case, just means we pay a third of what we would pay if we were self-funding. This is paid out of Mum's assets.

My brother, mother and I have power of attorney over Dad's finances and over his health. But on the ground, I'm the one largely responsible for managing Mum's day to day finances. Mum and Dad made a will and discussed it with my brother and I a few years ago. However, for tax reasons, they left their assets to one another, with my brother and I inheriting after the last one died. This I believe, upped our inheritance tax allowance.

However, since then the inheritance tax threshold has risen, and my parent's assets have depleted - to a point where we are unlikely to be troubling the tax man on that front. At the moment, though he is nearer to the end of his dementia journey than the beginning, Dad is in pretty robust health. Mum on the other hand, is very doddery, indeed, I think she is still with us though sheer will power because she promised Dad she would stay with him to the end. But, thinking that she might not make it, and that Dad may well be around for at least another five or six years, Mum has talked about changing her will and leaving her assets and her half of the house directly to my brother and I, since she feels she, and Dad if he could articulate it, would quite appreciate it if something of their life savings ended up going to their children and grandchildren, rather than on care.

I duly rang the firm of solicitors who sorted out Mum and Dad's original wills. They have told me that Mum cannot speak to the solicitor with any beneficiaries present and that they may have to speak to her doctor to ascertain if she has the cognitive ability to make a will. Mum is quite forgetful so she needs someone with her she trusts; me or my brother, or one of her care team but she's perfectly able to follow an argument and make an informed decision. As my brother, myself and the care team are all beneficiaries under her will, the solicitor has said that she will only talk to Mum about the will alone. I appreciate that it's probably tricky for a beneficiary to be there, but at the same time, I also have many friends in a similar position to me who have been very much involved helping a parent with dementia sort out their will. Mum has been very up front about her will and all of us know what's in it anyway. Worse I am a bit unsure of the solicitor, she sounds a bit salesey and I'm not sure what her motives are. Mum is definitely of sound mind but she is vulnerable and I don't want her to be bounced into anything.

Is the solicitor acting strangely or is there some new legislation I'm unaware of?

I think we should cancel and find another solicitor but I just wanted to see what the hive community thinks, does that strike anyone as odd or is it just me?

Cheers

MTM

 

[Katrine]

My mum wanted to change her Will and the solicitor arranged for her to be assessed by a psychiatrist in order to check her testamentary capacity. She had to be seen alone. Unfortunately the psychiatrist asked her about her bank accounts and how much she had in them which she didn't know because my brother was handling her finances, with her permission. She went into a tailspin of anxiety and the psychiatrist told her that, unfortunately, she was not mentally competent to make financial decisions. She was very upset for weeks, feeling completely disempowered.

If she had seen her usual solicitor she might have been able to avoid the psychiatrist, but my brother had decided to use a new solicitor who didn't know my mum and he was, quite rightly, covering his back. As you know, PWD can be suggestible and vulnerable to undue influence. Solicitors can get struck off if they don't apply due diligence, and they have to be so careful to help their clients avoid being pressured by relatives.

In my mother's case, her last Will had been rewritten to give me as little as possible to spite me for being a 'bad and ungrateful daughter'. In Scotland you can't completely disinherit your children, which she had tried to do! So she left half her estate to charities. As time went on she couldn't remember why she had done this and wanted to give me her house because I was now involved in looking after her and 'deserved it'. I was glad that she wasn't able to change her Will, even though I could do with the money. I didn't think she was competent to make the decision to cut out the charities. It seemed better to respect her previous wishes.

I know your situation is different because your parents have acted consistently to enable you both to have the best inheritance possible. However, the loser in these situations is likely to want to challenge the Will at probate, if they are aware that they may have a claim on the estate by contesting a replacement Will. This is why your mum's solicitor is insisting that nobody else be there during the interview.

 

[nitram]

Is the solicitor acting strangely or is there some new legislation I'm unaware of?

In my opinion the solicitor is acting correctly, he has to be sure that your mum is not being coerced in any way in deciding the terms of her new will. Having potential beneficiaries present could be seen as influencing your mum.

 

[Bunpoots]

When I accompanied my aunt and my dad to the solicitors to change their wills I was allowed in but I think I had to wait outside while the finer details were sorted out. I was quite surprised to be allowed in at all but it was two different reputable firms of solicitors and both were fine with it. And I was a beneficiary.

Having said that the local council were going to challenge the legality of mum leaving me her half of the bungalow when dad needed full time care, even though it was done ten years earlier and dad was fit and well at the time, as it was seen as deprivation of assets.
I don't know where this would have led as dad died during the twelve week property disregard period.

 

[MTM]

Thanks both, that's helpful. I spoke to a solicitor friend who said the same thing. Also spoke to the solicitor, herself and was able to get a feel for fees etc which my solicitor friend thought were fair so I'm feeling a lot better about that side of it, too. Mum is the one living in the house so what we would try and do is sell the house and use the proceeds to buy a couple of smaller properties to let. Hopefully the rent would cover the nursing home fees for Dad and at the end we would have assets left so everyone would win.

It'buy a property to let which would, hopefully, pay the care home fees for dad.

All in all, I think we should be OK.

Cheers

MTM