Dementia and wills

[Glenwood]

My wife's mother has been diagnosed with dementia and is in a care home where she has good and bad days. Pre diagnosis she was married but it transpired she was in a marriage where her partner was aggressive and bullying. She made a will 2 yrs ago and appointed her son as her power of attorney . He has fulfilled his role whilst divorce proceedings took place between mother in law and step father in law, although divorced now the will had been written pre divorce. My wife visits her and she is increasingly upset that she is not. been given a copy of her will and wants to change it. My wife's brother who is lpa is saying she can't change it and he'll look into it but is delaying. What action can I take.
Can she make a new will is it difficult to challenge the lpa holders actions

 

[nitram]

Anything left in a will to the spouse is cancelled on divorce, any other beneficiaries share the spouse's entitlement. If no other beneficiaries the person is intestate.

A person can only make a will if they have testamentary capacity.

Except in rare circumstances only the testator has the right to see a will until the testator dies.

 

[Kevinl]

Hi Glenwood, welcome to TP
It's as Nitram says, there's a link below that outlines the rules.
Basically on divorce all inheritance goes as does executorship (should he be one).
Anything left to him will be distributed to the other beneficiaries or according to the rules of intestacy if he is the sole beneficiary.
Your Mum in law can change her will if she still has capacity, if may be possible to get a qualified person to attest to this or indeed she has the capacity, if she does she can do as she likes but if the LPA has been activated then you'd need to go to the Court of Protection and prove she has capacity (link below). They say it costs £400 and takes about 16 weeks.
Given that you now know what'll happen, the Ex won't get anything it will be split to the other beneficiaries hopefully you'll be able to avoid the kind of family breakdown that can come at a time when you all need to be working together.
K

http://www.makeawill.co.uk/page-divorce-file-75.html

https://www.gov.uk/use-or-cancel-an-enduring-power-of-attorney

 

[Kjn]

Can my mum (full capacity) change her will when dad doesn't have full capacity...I'm POA .

 

[nitram]

"Can my mum (full capacity) change her will when dad doesn't have full capacity...I'm POA"

Simple answer, yes.

If dad lacks capacity and is the sole executor she should at least change the will in that respect.

Your POA for dad is irrelevant.

 

[sue38]

but if the LPA has been activated then you'd need to go to the Court of Protection and prove she has capacity (link below). They say it costs £400 and takes about 16 weeks.

The link relates to an old style EPA (Enduring Power of Attorney) which is only registered if the donor has become, or is becoming, mentally incapable of handling their financial affairs. If MIL has appointed her son under an LPA then registration is not linked to mental capacity.

As nitram and Kevin have said any provision for an ex-spouse in a will lapse (as if the ex-spouse had died) and the rest of the will be valid. So, for example, if the will left everything to spouse but if he had predeceased to your brother-in-law then he will inherit everything.

 

[Kevinl]

Can my mum (full capacity) change her will when dad doesn't have full capacity...I'm POA .

Yes, in a word. In fact there may be a number of good reasons for her to do exactly that. As long as she has capacity she can do as she likes, leave her money and half of the house (or whatever) to you, me or the cat's home, the capacity of her husband has no bearing on the situation.
It would be as well to leave him the right to live in the house as long as he wants/can and so she'll need to be tenants in common not joint tenants. Her money and half of any jointly help money can be gifted how she likes.
It might be better if they separated their money into single name accounts.
K

 

[Kjn]

Yes, in a word. In fact there may be a number of good reasons for her to do exactly that. As long as she has capacity she can do as she likes, leave her money and half of the house (or whatever) to you, me or the cat's home, the capacity of her husband has no bearing on the situation.
It would be as well to leave him the right to live in the house as long as he wants/can and so she'll need to be tenants in common not joint tenants. Her money and half of any jointly help money can be gifted how she likes.
It might be better if they separated their money into single name accounts.
K

She has moved money to her own accounts , dad had so many accs , shares Etc we have found with death of Fil recently that we need to sort things out now.
If it's it her own accs is that ok then?
Their will isn't tenants in common as far as I can gather. Could that be changed now with dad not in capacity?

oH has that with his parents will (dad just died) OH only child has element of house in his name and is executor .

I have siblings though .

 

[Glenwood]

Lpa

So looking at lpa if my wife's brother was named as attorney is there any conditions to advise relatives of this registration, would it be common for a daughter not to be advised as the first she knew about it was when he told her he now had control.

 

[sue38]

So looking at lpa if my wife's brother was named as attorney is there any conditions to advise relatives of this registration, would it be common for a daughter not to be advised as the first she knew about it was when he told her he now had control.

The donor (in this case your wife's mother) would have specified in the LPA who, if anyone, she wanted to be notified that the LPA was being registered. You can check if someone has been appointed to deal with MIL's affairs by searching the OPG's register.

https://www.gov.uk/find-someones-attorney-or-deputy