I am new so not sure if this is the place for this question or not. My mother in law is having a hard time with memory. She lives out of state and relies on my brother in law for everything. the last time he called he said she was taken off her medicine for memory as he did not think it was helping. My wife asked if he talked to the doctor, he said yes, but I would really doubt if this happened. He also mentioned he was going to quit his job and move in with her to take care of her. She is a widow and he has his name on her bank accounts. as her will stands today my wife will inherite half of everything. My big question is can he change the will so she willn ot get anything or much less. My mother in law said she does not want it changed but there is nothing in writing to sustatiate this, and with her memory loss she may never know that she has signed a change, nor would we until it is too late. Any help would be greatly apperciated.
changing a will
- Thread starter lilbull
- Start date
Hi Lilbull and welcome.
You ask a difficult question and I guess you are in the US?
Things may be different there from the UK.
Anyone can change someone's Will..... However the legality of the Will is the key thing, and being able to prove that it has been changed legally.
Dementia hands all sorts of challenges to us. One is knowing [not 'thinking' or 'wondering'] that a person has lost their ability to make decisions on finance, their Will etc.
Do you have a copy of the Will, as it stands?
Do you know if there is a Power of Attorney in place? Under what legal arrangement does he have his name on her accounts?
In your place, I'd want a copy of the Will, confirmation from the consultant of the severity of her condition and ideally, whether she is capable of making big decisions in the knowledge of what they are, and how they affect things. You need these things to contest anything that may transpire in the future.
You might also want to take independent legal advice on the situation locally.
These are just my thoughts.... I'm no expert.
You ask a difficult question and I guess you are in the US?
Things may be different there from the UK.
Anyone can change someone's Will..... However the legality of the Will is the key thing, and being able to prove that it has been changed legally.
Dementia hands all sorts of challenges to us. One is knowing [not 'thinking' or 'wondering'] that a person has lost their ability to make decisions on finance, their Will etc.
Do you have a copy of the Will, as it stands?
Do you know if there is a Power of Attorney in place? Under what legal arrangement does he have his name on her accounts?
In your place, I'd want a copy of the Will, confirmation from the consultant of the severity of her condition and ideally, whether she is capable of making big decisions in the knowledge of what they are, and how they affect things. You need these things to contest anything that may transpire in the future.
You might also want to take independent legal advice on the situation locally.
These are just my thoughts.... I'm no expert.
Hi Lilibul
I assume from your out of state reference that you are in the USA? While each state has its own rules over wills, generally you do have to be of sound mind to make a new will. However, this is one way lawyers make money - it's often not until the will is produced after the person has died that people discover the changes, and then the burden of proof is on the person who has been left out to prove that there was undue pressure or the person wasn't of sound mind. A reputable lawyer would take care to enquire if there had been a determination of dementia, a disreputable one might not. Both, however, could produce a potential legally binding document that would have to be litigated. So, in other words no, she probably couldn't legally change her will at this point, but you might have to prove that. Also, of course, a diagnosis of dementia doesn't necessarily mean a person it legally incapable - the specific state may have specific rules for this.
I would strongly suggest you contact an attorney, although you may not be able to change the situation at this point. Also, and please don't take offence, I can't help feeling that as your BIL is doing what appears to be the lion's share of the caring, there should be adequate recompense for that.
I assume from your out of state reference that you are in the USA? While each state has its own rules over wills, generally you do have to be of sound mind to make a new will. However, this is one way lawyers make money - it's often not until the will is produced after the person has died that people discover the changes, and then the burden of proof is on the person who has been left out to prove that there was undue pressure or the person wasn't of sound mind. A reputable lawyer would take care to enquire if there had been a determination of dementia, a disreputable one might not. Both, however, could produce a potential legally binding document that would have to be litigated. So, in other words no, she probably couldn't legally change her will at this point, but you might have to prove that. Also, of course, a diagnosis of dementia doesn't necessarily mean a person it legally incapable - the specific state may have specific rules for this.
I would strongly suggest you contact an attorney, although you may not be able to change the situation at this point. Also, and please don't take offence, I can't help feeling that as your BIL is doing what appears to be the lion's share of the caring, there should be adequate recompense for that.
Hi Lillibul
I don't disagree with Bruce and Jennifer in most respects. In the UK, a solicitor should make sure that the person changing (or making) a will has the mental capacity to do so (and having a mental illness does not necessarily negate that), and is not being coerced into doing so. I know nothing about legislation in the US but surely they are as sensible as us in little UK???
I don't entirely agree with Jennifer in her (supposed) implication that your brother should get more cos he is in charge of your mum. He might be able to access state benefits anyway, and my own daughters (if it were me) would just take the view that whoever is in a position to do the job just does it without any expectation of anything. In the UK, there is a provision whereby you can vary the will, so if your wife got half and she felt her brother had "earned" more, she can just alter the will. Seems a lot more friendly than worrying about who gets what before the lady has died.
But everyone is right, take legal advice. If your MIL has already made a will, I suggest contacting her solicitors to voice your concerns about your MILs state of mind should there be any changes made to the will in the future. But if they decide she is of sound mine and there is no coercion, there is probably nothing you can do.
Hope it all works out okay.
Love
Margaret
I don't disagree with Bruce and Jennifer in most respects. In the UK, a solicitor should make sure that the person changing (or making) a will has the mental capacity to do so (and having a mental illness does not necessarily negate that), and is not being coerced into doing so. I know nothing about legislation in the US but surely they are as sensible as us in little UK???
I don't entirely agree with Jennifer in her (supposed) implication that your brother should get more cos he is in charge of your mum. He might be able to access state benefits anyway, and my own daughters (if it were me) would just take the view that whoever is in a position to do the job just does it without any expectation of anything. In the UK, there is a provision whereby you can vary the will, so if your wife got half and she felt her brother had "earned" more, she can just alter the will. Seems a lot more friendly than worrying about who gets what before the lady has died.
But everyone is right, take legal advice. If your MIL has already made a will, I suggest contacting her solicitors to voice your concerns about your MILs state of mind should there be any changes made to the will in the future. But if they decide she is of sound mine and there is no coercion, there is probably nothing you can do.
Hope it all works out okay.
Love
Margaret
I don't think its clear what the concerns are here?
Is it about loss of potential inheritance or lack of faith in your BIL's ability to care?
They should be two separate issues? Or perhaps not?
Karen, x
Is it about loss of potential inheritance or lack of faith in your BIL's ability to care?
They should be two separate issues? Or perhaps not?
Karen, x
Lilbull....on the sassumption you are here in the US. If your brother-in-law has the power of attorney he could change the will, but any reputable lawyer would question it because at that point he has taken on a fiduciary responsibility. HE CANNOT do anything that would bring him great compensation, he can however pay himself to take care of her. But remember he cannot go out and use her money to become extravagant and he cannot pay himself in such a way that it would be strained for her. He can compensate himself as if he were her live-in nurse. Having lived the full route of being the caretaker and now having to probate moms estate I can say that there are things that tie his hands. All poa's can be revoked but only if the person is in their right mind and after that point only a judge can do that. A will written after her dimentia would be easily contested...but then the courts will likely divide evenly then divy a little from each side and say that is retribution for taking care of her and give it to to bil.
From experience.....if you want things to stay even then take an active role in taking care of her. Not just by word of mouth but also by actions. If you can't take an active role then accept what comes about.... I promise it is expensive to inhome care for an AZ patient. I'm sorry if I have offended anyone not trying to...just giving the round about of what I have gone thru here in the states.
HUGS
Nancy
From experience.....if you want things to stay even then take an active role in taking care of her. Not just by word of mouth but also by actions. If you can't take an active role then accept what comes about.... I promise it is expensive to inhome care for an AZ patient. I'm sorry if I have offended anyone not trying to...just giving the round about of what I have gone thru here in the states.
HUGS
Nancy
That's a very different scenario to the UK .... direct 'expenses' as POA/EPA are one thing ... being a 'carer' an entirely different ball game ....
Karen, x
you are very right karen....poa cannot pay themeself unless stipulated in the poa (for services required of the poa) but if a person is also the carer then that person may pay themself a amount not inducive of overpayment of what a normal carer would recieve......you have to relize that in the US we do not have socialized medicine or care givers allowances....hope that clarifies a litttle more.
HUGS
Nancy
HUGS
Nancy
Shooting ourselves in the foot?
This is interesting, Nancy .... thanks. The difference in UK/US legal and welfare perspective perhaps highlights something of great importance around POA/EPA as well as Lillbub's original question. To refer back to Jennifer's earlier post:
At times when I was considering giving up my job to care for mum I faced living on roughly £45 a week 'Carer's Allowance'. That simply would have been disaster for my own family and therefore was not an option in our circumstances. My mother could have afforded to 'pay me' far more than that out of her income alone to recompense for my lost earnings ... let's say £100 per week ...... but as her EPA I was not allowed to pay myself for any caring duties (including recompensing myself for all the 'lost hours' at work which of course cost me financially). As her EPA, however, I could have made the decision on her behalf to employ other carers / helpers and make the financial decision to outlay several hundreds of pounds each week/month to pay anyone but myself to undertake some aspects of her care? ... (not that mum would have wanted that - just hypothesis).
Had someone else been appointed as her EPA, and they agreed, I could have been recompensed financially for 'caring'? But by having taken on the reposnisbility of EPA I negated that option ..... for both of us (knowing ideally my mum would have loved me to have given up work for her and have been more than happy to 'recompense' and more ....).
Unless I have missed something ...... it seems absurd .... but this could be a very important point for others to consider who have not yet reached EPA/LPA stage about who is nominated as attorney if they are also likely to be the the primary carer?
Love, Karen, x
This is interesting, Nancy .... thanks. The difference in UK/US legal and welfare perspective perhaps highlights something of great importance around POA/EPA as well as Lillbub's original question. To refer back to Jennifer's earlier post:
At times when I was considering giving up my job to care for mum I faced living on roughly £45 a week 'Carer's Allowance'. That simply would have been disaster for my own family and therefore was not an option in our circumstances. My mother could have afforded to 'pay me' far more than that out of her income alone to recompense for my lost earnings ... let's say £100 per week ...... but as her EPA I was not allowed to pay myself for any caring duties (including recompensing myself for all the 'lost hours' at work which of course cost me financially). As her EPA, however, I could have made the decision on her behalf to employ other carers / helpers and make the financial decision to outlay several hundreds of pounds each week/month to pay anyone but myself to undertake some aspects of her care? ... (not that mum would have wanted that - just hypothesis).
Had someone else been appointed as her EPA, and they agreed, I could have been recompensed financially for 'caring'? But by having taken on the reposnisbility of EPA I negated that option ..... for both of us (knowing ideally my mum would have loved me to have given up work for her and have been more than happy to 'recompense' and more ....).
Unless I have missed something ...... it seems absurd .... but this could be a very important point for others to consider who have not yet reached EPA/LPA stage about who is nominated as attorney if they are also likely to be the the primary carer?
Love, Karen, x
I must confess I've wondered about this myself. My feeling was (although I never got to that point) that my mother would have been perfectly entitled to have paid me to care for her, even with an EPA (not that I got it registered, but if it had been). Not to administer the EPA (it seems quite clear that only "professionals" can be paid to do that) but for other things, I really don't see why not. After all, if I declared the income and paid taxes on it, it would be no one's business but ours, particularly if the capital wasn't touched (so there wouldn't be any subsequent issues with regard to deprivation of capital). I assume you took professional advice over this Karen? Even so, this I think is a gray area and I'm not sure who out there would take issue over it. I didn't have any siblings, and not even a social worker so who could complain?
No Jennifer - no advice. By the time I started to look at this with real seriousness - events overtook and hospital and hospice was necessary before I had to concede it was practically impossible to keep mum at home even if I could financially circumvent the issues ..... Like you - with no siblings ... no one to 'contest' anything .... to be blunt - I would have only been eating into any of my own inheritance that might have been left - so essentially there was no financial benefit to me. (Emotional issues aside, of course).
Whether my blasted conscience was screaming about my accountability to the Court of Protection, and the dictate that 'we' (as attornies) cannot pay ourselves ...... yet I would have had no qualms about accounting for the COP that I had employed a gardener, a cook, a personal shopper etc etc never mind 'carers' - because mum needed help with all those things. It's bizarre the law seems to allow you to pay someone else, probably at considerably more cost, but not yourself?
I hate this kind of topic - but these things do have to be considered ....
Karen, x
Whether my blasted conscience was screaming about my accountability to the Court of Protection, and the dictate that 'we' (as attornies) cannot pay ourselves ...... yet I would have had no qualms about accounting for the COP that I had employed a gardener, a cook, a personal shopper etc etc never mind 'carers' - because mum needed help with all those things. It's bizarre the law seems to allow you to pay someone else, probably at considerably more cost, but not yourself?
I hate this kind of topic - but these things do have to be considered ....
Karen, x
Going back to the original question of changing a will, I'm sure a (UK) solicitor told me that a will cannot be changed once a person is mentally incapaciated. It makes total sense to me. Hence the importance of sorting out and EPA/LPA and will early on in the illness.
However, they mentioned something about variations in certain circumstances. Just googled and got this (UK).
http://www.helptheaged.org.uk/en-gb/AdviceSupport/FinancialAdvice/MakingAWill/as_making_a_will_8.htm
You may need legal advice and perhaps you can use CAB or equivalent. However, I would say that solicitors fees can be shocking, particularly if things go wrong. If I were in your position and felt that the split was unfair, I'd just pass the money back after the probate was settled. I hate the way some solicitors take the oportunity to profit from loss. Inheritance tax is the only fly in the ointment, and then you are definitely stuck with getting some proper legal advice.
Cheers
Craig
However, they mentioned something about variations in certain circumstances. Just googled and got this (UK).
http://www.helptheaged.org.uk/en-gb/AdviceSupport/FinancialAdvice/MakingAWill/as_making_a_will_8.htm
You may need legal advice and perhaps you can use CAB or equivalent. However, I would say that solicitors fees can be shocking, particularly if things go wrong. If I were in your position and felt that the split was unfair, I'd just pass the money back after the probate was settled. I hate the way some solicitors take the oportunity to profit from loss. Inheritance tax is the only fly in the ointment, and then you are definitely stuck with getting some proper legal advice.
Cheers
Craig
To jump back in on this issue....
I'm not an only child and do have an older brother. I had the power of attorney given to me because my mother really did not like the way my sil acted towards our family. My brother took on the attitude of I married her ...her family is now mine. He really sort of abandonned our family. Mind you tho...my mother also did not like my other half...but my other halfs attitude was to divide the holidays among our families and when the holiday was also his families time he made sure mom was invited as this is the faily time also. Off subject but back to this.
When I had to invoke the POA that's all I did so that her bills and those things could be taken care of. I worked for another 3 Years before I had to make choices for the well being of my mother. My choice came from a promise to her that she wouldn't have to live in an nursing home.
Mind you when I talk with people about this I have a few pieces of advice...1.Don't do it expecting to get a larger share of an inheritance. 2. Keep very good fiscal records of where every dime is spent and be able to back it up. 3. If you have a sibling ask for help outright or don't complain. 4. If you do choose to be a carer and also have the POA expect to feel that you are getting less than you think is fair (no I don't feel slighted and yes I have kept things equal with my brother). You chose this route and it is unfair to hold it against a sibling. I also want to point out that if you are going to take care be sure and keep records of everything. In the US we have the income tax and there are alot of necessisties needed that can be taken off as a deduction on their taxes...at the same time you have a little standing ground where you can show where the money goes. Just because a person has POA and is the caregiver doesn't automatically give that person the right to do anything. I promise you...in todays society you will end up in court if you choose not to be fair even when you are doing all the work.
At the same time I can say my brother has made comments that it was my job, since I was the girl and so forth...oh well, chalk it up to heritage. After mom died my brother could have taken over and probated her state but chose not to...instead I am. Partly due to laws and how probate has to be done...but also due to the fact that as siblings we chose not to be petty over our inheritance. He knew I would stay fair with him and in turn it has worked out alot easier. All I can say is that for those of you out there not in the caring day to day role....stop and talk to your sibling who is. It's not all about your inheritance and it's not all about the patient. There is a fine line that this disease draws and if the carer and family don't work together in helping each other I promise when it's all over there are going to be lost family and feelings.
I'm sorry this is so long and I'm sorry if I've stepped on toes. The US is different in some ways and I"ve got the aquantances over here that run the gambit on how the final story played out with AZ and the family...from siblings not talking anymore to parents not talking to children to those that understood that it wasn't about the money but about the patient. Thought I would just give a little input. As usual not trying to hurt feelings.
Merry Christmas and Happy New Years all....your all in my prayers I know how this time of year feels.
HUGS
Nancy
I'm not an only child and do have an older brother. I had the power of attorney given to me because my mother really did not like the way my sil acted towards our family. My brother took on the attitude of I married her ...her family is now mine. He really sort of abandonned our family. Mind you tho...my mother also did not like my other half...but my other halfs attitude was to divide the holidays among our families and when the holiday was also his families time he made sure mom was invited as this is the faily time also. Off subject but back to this.
When I had to invoke the POA that's all I did so that her bills and those things could be taken care of. I worked for another 3 Years before I had to make choices for the well being of my mother. My choice came from a promise to her that she wouldn't have to live in an nursing home.
Mind you when I talk with people about this I have a few pieces of advice...1.Don't do it expecting to get a larger share of an inheritance. 2. Keep very good fiscal records of where every dime is spent and be able to back it up. 3. If you have a sibling ask for help outright or don't complain. 4. If you do choose to be a carer and also have the POA expect to feel that you are getting less than you think is fair (no I don't feel slighted and yes I have kept things equal with my brother). You chose this route and it is unfair to hold it against a sibling. I also want to point out that if you are going to take care be sure and keep records of everything. In the US we have the income tax and there are alot of necessisties needed that can be taken off as a deduction on their taxes...at the same time you have a little standing ground where you can show where the money goes. Just because a person has POA and is the caregiver doesn't automatically give that person the right to do anything. I promise you...in todays society you will end up in court if you choose not to be fair even when you are doing all the work.
At the same time I can say my brother has made comments that it was my job, since I was the girl and so forth...oh well, chalk it up to heritage. After mom died my brother could have taken over and probated her state but chose not to...instead I am. Partly due to laws and how probate has to be done...but also due to the fact that as siblings we chose not to be petty over our inheritance. He knew I would stay fair with him and in turn it has worked out alot easier. All I can say is that for those of you out there not in the caring day to day role....stop and talk to your sibling who is. It's not all about your inheritance and it's not all about the patient. There is a fine line that this disease draws and if the carer and family don't work together in helping each other I promise when it's all over there are going to be lost family and feelings.
I'm sorry this is so long and I'm sorry if I've stepped on toes. The US is different in some ways and I"ve got the aquantances over here that run the gambit on how the final story played out with AZ and the family...from siblings not talking anymore to parents not talking to children to those that understood that it wasn't about the money but about the patient. Thought I would just give a little input. As usual not trying to hurt feelings.
Merry Christmas and Happy New Years all....your all in my prayers I know how this time of year feels.
HUGS
Nancy
You know Nancy - while the legal requirements may be different in different countries what you have said seems universal. Some families pull together, some don't but mostly they're somewhere in between, and all you can really do is do what feels appropriate without worrying about "fairness" or "rights". Easy for me to say, of course: being an "only" might put more strain on one, but having read this forum over the years I preferred that strain to the second guessing that seems pretty common from siblings.
You're right Jennifer it is universal. You were lucky in the sense that you were an only child and had no sibling to worry about second guessing you.....but at the same time those siblings should be coming together, not apart. Mom and dad were only children and when dad was gone and mom was left to care for his mother....my brother and I jumped in to help care for her, but I know so many who were just left to there own. It really is a shame this world is selfish on most days. You deserve a big HUG for everything you did and still do to help....most people just close the door.
HUGS
Nancy
HUGS
Nancy
Hate bringing this but any advise/comments would be appreciated.
My mum made her will with the solicitor a few months after finding out she had dementia some six years ago, however she never told the solicitor she had dementia, does this create problems even if the will is NOT contested by anyone? I suppose what I mean "Is probate harder to get if the person has had dementia"?
I believe that you can still have capacity to make a will even if dementia has been diagnosed. There are so many degrees of dementia that you couldn't have a blanket prohibition. I'm reasonable certain that if no one was contesting it, there would be no obstacle to obtaining probate. If someone was contesting it, then you're into "how long is a piece of string" I think. I assume that this solicitor made a reasonable effort to establish that she knew what she was doing when she made the will, and I suspect that on that basis, even if contested it would stand. Maybe not if it was a dramatic change from a previous will, or she left everything to the gardener, but on the whole I think it is probably not worth worrying about.
Thanks Jennifer, I do worry stupidly sometimes about the practical things and things that are not really important in the grand scheme of things
