Question about an specific bank account mentioned in a Will

[JMA11]

Hi everyone, I'm new on here.

My mum has frontal lobe dementia and possibly alzheimers. My brother and myself are financial POAs for her.

In going through her papers my brother has located a photocopy of the Will executed in 2008. In it there is a provision that says that the proceeds of a ISA number 123456789 (i.e. the specific account no. is mentioned) is to go to a certain beneficiary who is now no longer a part of our Mum's life. That particular ISA was closed a couple of years ago and the proceeds transferred to a new ISA. Would anyone know if payment would still have to be made to this particular beneficiary if the account mentioned in the Will no longer exists?

Thank you
JMA

 

[nitram]

"proceeds of a ISA number 12345678"
is different to
Balance of a ISA number 12345678

The balance is obviously zero as the account is closed.
The proceeds still exist.
What is the exact wording in the will?
You need professional legal advice.
Who is the executor?

 

[Jessbow]

The fact that the person is no long part of mums life is neither here nor there.

yes I think it should have been paid to that person on maturity. The fact that you transferred it to another account rather than gave it to the recipient, citing the account it no longer exists could almost be construed as fraud.

Whose will was it?

 

[2jays]

The fact that the person is no long part of mums life is neither here nor there.

yes I think it should have been paid to that person on maturity. The fact that you transferred it to another account rather than gave it to the recipient, citing the account it no longer exists could almost be construed as fraud.

Whose will was it?

If mum is still alive it STILL her money and it should be used for her benefit

 

[Jessbow]

If mum is still alive it STILL her money and it should be used for her benefit

How come if was bequeathed to someone else in a will executed some 9 years ago?

 

[Beate]

I think the word "executed" means to say in this case that the will was made in 2008. The mother still seems alive, so the inheritance hasn't happened yet. But in the meantime the specified ISA has changed because the sun/daughter wasn't aware of the stipulation in the will - at least that's how I read it. It's understandable as it's good financial practice to transfer ISAs to better deals.
I think specialised advice is needed but in my understanding things that don't exist anymore at the time of death simply cannot be bequeathed, unless someone argues here that it isn't the ISA number that's relevant but the invested money, whichever ISA it is now in.

 

[Kevinl]

If acting under a POA you dispose of an asset willed to a specific person and put it somewhere you may inherit it then you'd be open to the accusation that you have benefitted as a result of the POA.
I sold my mother's house a couple of years before she died and she came to live with me, the money from the house sale went into the bank, I was unaware of the contents of the will at the time. When the time came the will said her house was to be sold and the money split between her children and grandchildren but money in the bank was to bee split between the children only so I effectively disinherited the grandchildren including my 3 children by selling the house.
If the person due to inherit and even though they're no longer in your mum's life they may still find out from a third party that they're due to inherit and ISA and ask the executors about it then if they find out it's been sold and someone else has benefitted by doing this I'd expect a letter from their solicitors at the very least.
K

 

[Beate]

Are people reading the OPs post correctly? All he/she has done is transferred an ISA to another provider, something I do almost every year, if and when a better deal comes up. It's best financial practice, and the OP wasn't aware of the will's content until recently. How they are to blame here is beyond me. You don't sell an ISA. The money is still there and invested, just under a different ISA name or provider. ISAs don't usually get closed down but transferred, because otherwise you start from scratch instead of transferring all the money and accumulated interest. The question now is as to how the will was worded - does it mean money from this specific ISA should go to the recipient, or the original ISA money? Quite frankly, because it is so common to transfer ISAs regularly, putting a specific ISA number into a will wasn't really wise in the first place.

 

[Jessbow]

So Clarifiction is needed.

A will was drawn up in 2008
or
a will was executed in 2008


Once executed a will becomes a public document, anyone can apply for a copy. Anyone thinking perhaps they might have inherited and didn't, could quite easily apply for a copy ( its about £15)

 

[JMA11]

Hi. Sorry I didn't realise there was a difference. Mum drew up a will in 2008 and it was signed by the solicitor.


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[JMA11]

Sorry there seems to be confusion in the terms used. Mum wrote her will in 2008. The wording is the proceeds of isa 1234566789 I give to ..... my mum transferred her isa a couple of years ago to another isa with the same organisation. My brother and I were not aware of this transaction and can only assume it was a better interest rate.

My brother and I activated the poa late last year and we have been trying to get mum's paperwork into some sort of order as she is a great horder.

So if the isa 1133456789 was worth for instance £10k on transfer, and now say it's worth £20k would the whole isa have to be paid to the beneficiary or just the amount that was quoted in the account mentioned in the will

Thank you


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[Shedrech]

hi JMA11
I don't have a legal mind - but, to me, your mum herself knew the contents of her own Will and her own wishes - your mum transferred the money to another ISA (ie new account) when she was managing her own finances (she didn't need to tell anyone else what she was doing) - the Will only becomes effective on her death - any amounts/accounts referred to in the Will are in respect of monies/accounts at the time of her death, not at any other time in her/their lifetime - POA only applies to managing her present finances in her best interests; has nothing to do with her Will - the Executors of her Will deal with her estate at the time of her death
I don't see that there will be any monies in that particular account at the time of your mum's death because she deliberately transferred all to another account - so the person named will inherit nothing
twist things around - suppose your mum had put all her assets into that one account - would the person be arguing that they should only then inherit what had been in the account at another time ie the lower amount?
it's not part of your duties as her Attorneys to undo something she chose to do before you took over control of her financial affairs - if she'd wanted to keep that ISA separate and the account current she easily could have done; she didn't

 

[Jessbow]

OK< Will was drawn up in 2008

( you execute a will after the person has died)

I'd say all of it, but you should perhaps take advice of solicitor. the point of it being in an ISA was so it increased in value presumably, otherwise it would be just a sum/percentage of the estate.

The proceedes from ISA 1234567 still exist, they are just stored elsewhere ( in ISA 7654321)

 

[nicoise]

You are overthinking this.

If an account, or ISA, or asset mentioned in a will is no longer held or owned by the deceased, the bequest fails.

Therefore although it is mentioned in the 2008 signed Will, it cannot happen.

Although a person may discover that at one time they may have been a beneficiary, if the asset no longer exists it cannot happen; they cannot insist on receiving what they might once have received.

Take legal advice if you would like legal confirmation, or if you suspect the disinherited beneficiary might cause trouble, for your own peace of mind.

Assuming your mother no longer has capacity, she can no longer change her Will, or if she does and wishes to reinstate her bequest then she should see a solicitor to change her Will.

 

[Kevinl]

Although a person may discover that at one time they may have been a beneficiary, if the asset no longer exists it cannot happen; they cannot insist on receiving what they might once have received.

I can't believe this is right. Let's say I had an LPA for my mum, she leaves her cash in the bank to me but leaves the Rembrandt painting over the fireplace to my brother and her valuable collection of jewellery to my sister, as I have POA I can just sell the picture and the jewels, put the cash in the bank and inherit the lot as the assets "no longer exist" so I get to keep the lot.
It's a bit like the police finding out who burgled your house but then saying they can't do anything as he flogged it all to "Freddy the fence" in the local pub so as the burglar no longer has your property it no longer exists.
Anyone who knew the contents of a will and had a POA could just put anything and everything into the place that benefitted them the most, if I inherited the house but not the money then I could just get an extension on the house to bump up the houses value at the expense of those who inherit the cash, the cash no longer exists but the house does and it's all mine! Can't be right surly?
K

 

[Raggedrobin]

But the asset was moved to a different ISA by the mother before she was ill? So it isn't the people with PoA who have done that, so it isn't like selling off the Rembrandt. Also, I would assume the money from the new ISA, if cashed in, will in the first instance be used for the mother's care, as she is still alive. Then, when she dies, indeed, the account that was mentioned in the will had ceased to exist some time ago, so doesn't go to the original ISA beneficiary?
THat would be my understanding of it

 

[Kevinl]

But the asset was moved to a different ISA by the mother before she was ill? So it isn't the people with PoA who have done that, so it isn't like selling off the Rembrandt. Also, I would assume the money from the new ISA, if cashed in, will in the first instance be used for the mother's care, as she is still alive. Then, when she dies, indeed, the account that was mentioned in the will had ceased to exist some time ago, so doesn't go to the original ISA beneficiary?
THat would be my understanding of it

It's all fair comment, but conversion of assets from one beneficiary to another beneficiary (care home fees aside) by a POA would be very open to question.
If I did it I'd expect to pay the court costs, both my own and the other sides as flipping assets from one beneficiary to yourself under a POA has to mean you benefit so it's not legally allowed.
As has been said specifying the name and number of an ISA in a will isn't a good idea, the mother may well have done this while she still had capacity but not thought through the legal implications viz her will, naming the ISA was a bad call by whoever drew the will up.
That said the "morality" of the situation is that (to me) the mother intended that person to get some part of her estate, there may be many reasons we're not aware of so whether or not they're still on the scene isn't too important, once they may have done something so crucial to her life that the only way they can pay them back is from beyond the grave. The longer you live the more past you have and who knows what's buried there. I'd follow the intentions of the will even if it cost me money.
K

 

[Chemmy]

I can't believe this is right. Let's say I had an LPA for my mum, she leaves her cash in the bank to me but leaves the Rembrandt painting over the fireplace to my brother and her valuable collection of jewellery to my sister, as I have POA I can just sell the picture and the jewels, put the cash in the bank and inherit the lot as the assets "no longer exist" so I get to keep the lot.
It's a bit like the police finding out who burgled your house but then saying they can't do anything as he flogged it all to "Freddy the fence" in the local pub so as the burglar no longer has your property it no longer exists.
Anyone who knew the contents of a will and had a POA could just put anything and everything into the place that benefitted them the most, if I inherited the house but not the money then I could just get an extension on the house to bump up the houses value at the expense of those who inherit the cash, the cash no longer exists but the house does and it's all mine! Can't be right surly?
K

Isn't that why you ae advised to choose an attorney you can trust to do the right thing?

 

[Chemmy]

I'm no legal expert but looking around, this seems to be a case of whether the gift intended in the will has been 'adeemed'. There seem to be specific rules so no doubt a solicitor will be able to advise. Can't you ask the solicitor who wrote the will for clarification?

http://lexisweb.co.uk/sub-topics/failure-of-gifts

I wonder if this is the relevant bit

A gift may be adeemed by the testator's own disposition of it, eg by its sale or a change of investment.

And elsewhere. this example

For example, the gift in the clause 'My yacht to my friend Natasha.' in the Will of a testator who sold the yacht a few months prior to his death for £30,000 is said to have been adeemed. Unlucky Natasha cannot claim the £30,000.

http://www.mylawyer.co.uk/gifts-and-beneficiaries-a-A76045D77066/

If care is needed, cash in an ISA is likely to be used before a house is sold, for example, and I don't think anyone would find that unreasonable. Conversely, say the house was sold to pay for care, would the beneficiary still expect the full payout from the ISA?


It sounds like a poorly drafted will, tbh. Perhaps it should have specified a % of the residual estate instead.

If you search for failure of gifts will you'll come up with lots of info re. ademption. The crux of the matter seems to be whether the ISA mentioned in the will is a specific (can be adeemed), a general (can't be adeemed) or a demonstrative gift/bequest.

 

[Chemmy]

There's an interesting case study (albeit in Canada) here involving a specific bank account

http://www.mondaq.com/canada/x/4430...ens+If+A+Gift+Made+In+A+Will+Cant+Take+Effect

Secondly, the Court explained that ademption would not apply to a gift that had changed in name or form alone if the item remained substantially the same thing.

In Wood, the Court found that the gift was comingled with other monies and "tracing" of the funds was no longer possible. Accordingly, since the gift had changed beyond just mere form or name, it was found that the gift had adeemed.