Can a will be acted on before death

[TerryR]

My father in law has dementia and has been taken into a nursing home. his house has been sold. one of his siblings who has been paying the mortgage on the property, has found his will which states she will inherit the house. She has managed to get access to 40 percent of the house money and on his death with receive the balance that is left after his care has been paid for.
Is this legal. how can a will be acted on before death?

 

[loveahug]

It's a simple one, Terry, in that the will is a legal document which only comes into effect after death, until then it is just so many pieces of paper. Even if the person involved has Power of Attorney for Finance and Property, they can only act for the benefit of your FiL. Either way you should Contact the Office of the Public Guardian and give them the details and they will act upon the information.

Best wishes

EDIT: sorry, meant to wish you a warm welcome to TP, I'm sure there will be others along soon to add their support

 

[jenniferpa]

Terry - I suspect it's not the will that's controlling this (because as loveahug has said a will only comes into effect after the death of the testator), but that there is some kind of trust document showing that the sibling has a beneficial interest in the property (as I would expect there to be if they were paying a mortgage on the property).

If, on the other hand, she has simply taken the money, then you should indeed contact the OPG. How did she gain access to the money?

Can I also point out that now the house has been sold, a will that says something like "I leave my house to my sister" is pretty meaningless, particularly if there are other stipulations like "and I leave my remaining assets to my children" because now the cash from the house sale is part and parcel of the remaining assets.

I think you need professional legal advice.

 

[Wirralson]

Terry,
A will is said to "speak from death" and is (almost) irrelevant legally until the decease of the testator. As Jenniferpa has said there is either some kind of trust or the sibling concerned has been able to demonstrate an interest in the property (which one would expect). The existence of such an arrangement wouldn't depend on the will, but the will might provide evidence of the existence of the arrangement. The solicitor or conveyancer carrying out the conveyance would not (or should not) have distributed the money to the individual concerned without a clear legal basis for doing so. However, you would need further legal advice if you wished to challenge it. If your FiL's sister has been paying the mortgage, then it may (indeed should) have been in her name. One way of checking would be to try to see a copy of the entry on the Land Charges Register for the property (if in England and Wales) and see if there was any Land Charge (i.e. set of legal rights) entered against the property either with a bank or in the name of your FiL's sibling. Any such charge would have to be settled when the property was sold. The "40%" may have had to go on settling the balance of the mortgage. What happens on your FiL's death will depend on the assets that are actually left. However, it is possible to change a will where a person lacks capacity using the powers in the Mental Capacity Act 2005 (again, England and Wales) to make what is called a "statutory will". A change in assets (e.g. where a house is sold) is one reason for such a change being made.

Wirralson