Changing a will for a PWD

[maisiecat]

I'm in the process of changing my will in order to protect inheritance for our children and grandchildren. The solicitor who I am working with does not want me to name the Grandchildren in case there are more which I feel would be a horrific shock to both my daughter and daughter in law. Making a will is an expensive business though so you need to be aware of that.

 

[Chizz]

Depending on your circumstances, value of estate, and the persons or charities you wish to bernefit who are not relatives, it might be more expensive not making a Will (although the deceased may no worry about that!)

 

[NickP]

My MIL recently changed her will. The solicitor deemed her to have capacity to do so and having looked up what is included in 'having capacity to change a will' it is pretty basic. We don't agree - my MIL is extremely confused, her decisions in the change are based on confabulations but none of that matters as the solicitor says she has capacity for this task.
I have PoA but the solicitor would have nothing to do with me (quite rightly in terms of MIL being the client) and she made it quite clear that me simply raising a concern with her about MIL's capacity was highly suspicious.

 

[Rayreadynow]

If you have POA why not gift them some money now ?

 

[Palerider]

Hi,

Does anyone have any experience of helping a person with dementia change their will?

My mother has a will she made roughly 20 years ago. I (her daughter) am the main beneficiary but she has also left a token sum to each of her three nieces. Since her 2 grandchildren came along she has regularly expressed a desire to update her will and leave something to them.

With everything else we've got going on it always seemed an extra admin burden however with the potential prospect of care costs, care homes and selling her house etc, that token sum left to her nieces becomes a fair proportion of what would be left and I know she would far rather it goes to her little grandchildren.
Is it too late to change it now. I have POA as well. I don't know whether that would help or hinder.

Hi @SRM1956

This comes up a lot on the forum. I have read through the thread and some of the responses.

My mum changed her Will some time ago after her diagnosis of dementia, but in the early stages while she had capacity. Mum used a solicitor for this, which with a diagnosis of dementia is wise to do. The overriding concern by mums solicitor was whether the change of Will might be contested, that was his only concern. To that end mum was seen by a psychiatrist for assessment of her capacity. The psychiatrist then wrote her report and forwarded that to mums solicitor saying that she did have capacity. As a consequence of that the solicitor proceeded and mum changed her Will.

The concern around a Will being contested is that it is a very expensive process and has the potential to consume all of the inheritance in legal fees.

 

[SeaSwallow]

If you have POA why not gift them some money now ?

It could be seen as deprivation of assets.

 

[Rayreadynow]

I believe its allowable.

 

[jugglingmum]

It could be seen as deprivation of assets.

I agree it it's deprivation of assets and not allowed

 

[Jessbow]

I'm in the process of changing my will in order to protect inheritance for our children and grandchildren. The solicitor who I am working with does not want me to name the Grandchildren in case there are more which I feel would be a horrific shock to both my daughter and daughter in law. Making a will is an expensive business though so you need to be aware of that.

You dont need to name the, you just say

£1000 to each of my grandchildren and great grandchildren .- that covers any that may not be born yet

 

[Hours Away]

If capacity could be an issue it might be worth asking the solicitor whether it could still be possible to amend the existing will by adding a codicil to remove the nieces as beneficiaries and replacing them with the grandchildren. Perhaps the wording could even explain the rationale behind the update. Might be just as expensive but perhaps the capacity threshold would be lower.

 

[nitram]

If capacity could be an issue it might be worth asking the solicitor whether it could still be possible to amend the existing will by adding a codicil to remove the nieces as beneficiaries and replacing them with the grandchildren. Perhaps the wording could even explain the rationale behind the update.

A codicil requires the same capacity as a new will.

 

[SRM1956]

Hi @SRM1956

This comes up a lot on the forum. I have read through the thread and some of the responses.

My mum changed her Will some time ago after her diagnosis of dementia, but in the early stages while she had capacity. Mum used a solicitor for this, which with a diagnosis of dementia is wise to do. The overriding concern by mums solicitor was whether the change of Will might be contested, that was his only concern. To that end mum was seen by a psychiatrist for assessment of her capacity. The psychiatrist then wrote her report and forwarded that to mums solicitor saying that she did have capacity. As a consequence of that the solicitor proceeded and mum changed her Will.

The concern around a Will being contested is that it is a very expensive process and has the potential to consume all of the inheritance in legal fees.

Thanks for the advice. This really helps. I can't see my cousins (the nieces) contesting the will. It's only a small amount and I'm sure they will have all assumed Mum has left everything to me and my children anyway. I don't how much it costs to contest a will but I'm sure it would dwarf the sums we are talking about.

I might see if I can speak to the solicitors and understand the process and what's required. All mum really wants to do is a slight amendment. Everything else stands but remove the nieces and add in grandchildren.

 

[maggie6445]

If you have POA why not gift them some money now ?

Hi @Rayreadynow , you ask this question regularly. I think you might be confusing tax rules and gifting and POA rules and gifting. . Someone can gift their own money under tax rules . There are limits and rules but they are entitled to do so under those rules.
A POA can only gift if it is the donors normal gifting pattern and the amount is reasonable and in their best interest .So it could be acceptable and be said to be in their interest to make a small gift to,say grandchildren, for a birthday or Christmas gift or wedding present.in their interest to maintain a family relationship. But it is not permitted to gift large gifts. As a PWD is likely to need money for their care it would be deemed deliberate deprivation of their assets.
A POA has to spend in the best interest of the the donor and with dementia the donor is likely to need that money for their own care.

 

[Rayreadynow]

Hi @Rayreadynow , you ask this question regularly. I think you might be confusing tax rules and gifting and POA rules and gifting. . Someone can gift their own money under tax rules . There are limits and rules but they are entitled to do so under those rules.
A POA can only gift if it is the donors normal gifting pattern and the amount is reasonable and in their best interest .So it could be acceptable and be said to be in their interest to make a small gift to,say grandchildren, for a birthday or Christmas gift or wedding present.in their interest to maintain a family relationship. But it is not permitted to gift large gifts. As a PWD is likely to need money for their care it would be deemed deliberate deprivation of their assets.
A POA has to spend in the best interest of the the donor and with dementia the donor is likely to need that money for their own care.

Yes it can be really confusing between gift definitions under the MCA 2005 and the Public Guardian definition but if you research both those sources you can find a suitable justification and its basically what you have suggested. One justification is to keep that relationship between the PWD and family members. I would argue that if HMRC allow £3000 to be given away every year as tax planning I dont see how the LA could argue its a deprivation of assets if a PWD does the same.

 

[maggie6445]

Yes it can be really confusing between gift definitions under the MCA 2005 and the Public Guardian definition but if you research both those sources you can find a suitable justification and its basically what you have suggested. One justification is to keep that relationship between the PWD and family members. I would argue that if HMRC allow £3000 to be given away every year as tax planning I dont see how the LA could argue its a deprivation of assets if a PWD does the same.

Mmm sadly there are anomalies between governments departments. Eg a person working and cohabiting is expected to maintain the non working partner even if the relationship is only months old but when it comes to paying for care for eg, a husband going into care is no longer expected to maintain a wife of 60 years even if he has always maintained her. His savings are his even if he has always shared with his wife. Rules seem to disregard family unity and the accepted ideals of marriage and favour the State. The LA has to protect the public purse.

 

[maggie6445]

@Rayreadynow , just as an additional thought re your POA gifting and PWD right. Tax gifting is often giving to reduce tax liability and inheritance tax. If a PWD has huge wealth and if after self funding a care home for three years( the average time of a care home resident before death) there would still be an estate large enough for IHT then it might be arguable to tax gift in their best interest.. LA wouldn't be involved anyway but for the majority of people IHT and the question of reducing tax liability isn't an issue if funding care.

In the case if the original post here it was stated the sum of money is small so gifting not acceptable.

 

[Rayreadynow]

What I do know is no one should have to think about these things when it comes to arranging care. What is the LA going to do when they run out of people who have been lucky and built up capital in their home over the last years.

 

[maggie6445]

What I do know is no one should have to think about these things when it comes to arranging care. What is the LA going to do when they run out of people who have been lucky and built up capital in their home over the last years.

I agree ,social care funding needs change. It will only come by complaining and lobbying those in a position to make it happen.
Join campaigns run by Alzheimer UK and other charities and keep at your MP and other party candidates. Together we could make a difference. Paying tax on interest on house sale money when in care annoys me too 😊