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Will Legacy

Nero1234

Registered User
Nov 3, 2015
28
Hi, i am new to the site so please have a little patience if i get distracted from my enquiry. I have had experience in the past with dementia my mum suffered badly with the illness a few years ago and passed away so i understand how it affects families,

An elderly relative of mine has been left property and a car in a friends will,
She has recieved a letter from the solicitors asking her to agree to a deed of variation to ammend and honour a more recent will that her friend had made in 2015
The will that has left her the property was made in 2003.
She is currently in a CCH in London and the staff say anything she signs would not hols up because of her illness, what steps must now be taken to honour the 2015 which includes several charities in it, can you tell me who would now sign the deed of variation on her behalf would it be her doctor or would it go to court for a judge to decide for my relative, any help with this would be much appreiated.
 

jenniferpa

Registered User
Jun 27, 2006
39,448
If someone had an enduring or lasting power or attorney for your relative, or there was a deputy, then it would be them who was signing (and even then, the ramifications of essentially giving away something that they were entitled to might be fraught). Otherwise it would be up to the court.

I'll say this though - what about the most recent will? If it's valid there would be no need for a deed of variation, so it probably isn't. And frankly, I'd be asking why that will can't be probated.
 

Beate

Registered User
May 21, 2014
11,895
London
I really have no legal knowledge and thus do not understand why a deed of variation is needed to execute a will but it would be either the attorney or deputy, or if none available, the court. Obviously, whoever acts for your relative would also have to consider the impact such an inheritance would have on the care costs - if for example the property value would suddenly make him self-funding.
 
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nitram

Registered User
Apr 6, 2011
19,901
North Manchester
She is effectively giving away some assets, if she lacks capacity and in the absence of an LPA or COP (court of protection) deputy an application will have to be made to the COP, this costs and I can see no reason why she should foot the bill, doctors have no authority to control her finances although one could rule whether or not she had capacity to act herself.
I am surprised that the recent will did not include a clause revoking any older wills or codicils.
I also suggest that you take legal advice as to whether the LA would consider a deed of variation as deprivation of capital
 

Nero1234

Registered User
Nov 3, 2015
28
2015 Will

She is effectively giving away some assets, if she lacks capacity and in the absence of an LPA or COP (court of protection) deputy an application will have to be made to the COP, this costs and I can see no reason why she should foot the bill, doctors have no authority to control her finances although one could rule whether or not she had capacity to act herself.
I am surprised that the recent will did not include a clause revoking any older wills or codicils.
I also suggest that you take legal advice as to whether the LA would consider a deed of variation as deprivation of capital
Hi, the 2015 will was not signed and witnessed properly prior to her death but has been draughted with all her wishes and last instructions and is with her solicitor, everyone else in the 2015 will has agreed to the deed of variation the only one left to sign it is my elderly relative, would the court make the decison and make the 2015 will back in play as she is the only one holding things up, she was the original executor and has been asked to agree to the 2015 execuator, to take over the affairs of the estate.
 

Beetroot

Registered User
Aug 19, 2015
362
Following on from Nitram's post, I would be surprised if the CoP can agree to her effectively divesting herself of assets as it's not in her best interests to do so.
 

2jays

Registered User
Jun 4, 2010
11,598
West Midlands
Don't think 2015 will is valid even if you get deed of variant sorted.


Sent from my iPhone using Talking Point
 

Beate

Registered User
May 21, 2014
11,895
London
Following on from Nitram's post, I would be surprised if the CoP can agree to her effectively divesting herself of assets as it's not in her best interests to do so.
The 2015 will doesn't seem to be valid which is the reason they seem to need the deed of variation as I think it's the only way you can change a will after someone's death (I had a quick google). However, if this will now gives her less than before, it's not in her best interests. On the other hand, if the property were enough to pay for her lifetime care, would social services ever get to invest the finances? I agree, a solicitor should look over the eventualities. It's not her fault for holding up proceedings if she's deemed not to have capacity. People simply will have to be patient until it's sorted one way or another.
 

Nero1234

Registered User
Nov 3, 2015
28
Update

The 2015 will doesn't seem to be valid which is the reason they seem to need the deed of variation as I think it's the only way you can change a will after someone's death (I had a quick google). However, if this will now gives her less than before, it's not in her best interests. On the other hand, if the property were enough to pay for her lifetime care, would social services ever get to invest the finances? I agree, a solicitor should look over the eventualities. It's not her fault for holding up proceedings if she's deemed not to have capacity. People simply will have to be patient until it's sorted one way or another.
Hi, the 2015 will is not valid, they are asking all of the benefiiciers from the 2003 will to agree the last instructions and wishes that were draughted up on the 2015 will to make it legal.
 

nitram

Registered User
Apr 6, 2011
19,901
North Manchester
If she lacks capacity the COP will have to make the decision if asked.

You said she was an executor of the will, are there any other executors?
 

Nero1234

Registered User
Nov 3, 2015
28
Update

If she lacks capacity the COP will have to make the decision if asked.

You said she was an executor of the will, are there any other executors?
Hi, the other executor in the 2003 will has passed away,
So the 2003 will has now no executors to execute the estate
The only executor is the one from the 2015 will which they are asking her to agree to take over the estate in compliance with the deeds of variation
 

sue38

Registered User
Mar 6, 2007
10,854
51
Wigan, Lancs
Can I ask who drew up the 2015 will that was not properly executed, and who is urging your relative to sign away her entitlement under the previous will? The reason I ask is that if the solicitors who are now urging your relative to sign the deed of variation are the same ones who were responsible for failing to ensure that the 2015 was properly executed they may be trying to avoid a negligence claim from the 2015 beneficiaries. As the 2015 will included Charities as beneficiaries those Charities are unlikely to let the solicitors off the hook if they have been negligent. Charities are, generally, run very much as a business these days.
 

Beetroot

Registered User
Aug 19, 2015
362
Can I ask who drew up the 2015 will that was not properly executed, and who is urging your relative to sign away her entitlement under the previous will? The reason I ask is that if the solicitors who are now urging your relative to sign the deed of variation are the same ones who were responsible for failing to ensure that the 2015 was properly executed they may be trying to avoid a negligence claim from the 2015 beneficiaries. As the 2015 will included Charities as beneficiaries those Charities are unlikely to let the solicitors off the hook if they have been negligent. Charities are, generally, run very much as a business these days.
I can't help but wonder if the solicitors have informed their professional indemnity insurers!

This is a court matter and Nero cannot, even if she had an lpa in her favour, decline the 2003 legacy on her relative's behalf. If the solicitors are aware of her mental incapacity, they will know that.
 

Nero1234

Registered User
Nov 3, 2015
28
Update

Can I ask who drew up the 2015 will that was not properly executed, and who is urging your relative to sign away her entitlement under the previous will? The reason I ask is that if the solicitors who are now urging your relative to sign the deed of variation are the same ones who were responsible for failing to ensure that the 2015 was properly executed they may be trying to avoid a negligence claim from the 2015 beneficiaries. As the 2015 will included Charities as beneficiaries those Charities are unlikely to let the solicitors off the hook if they have been negligent. Charities are, generally, run very much as a business these days.
Hi, the solicitors were appointed by a national uk funeral plan company as part of a probate plan connected to them,
The draught 2015 will which only needed to be signed by her late friend has several copies available and was presented to the probate office and rejected by them,
My relative is included in the 2015 will but not as the executor
 

sue38

Registered User
Mar 6, 2007
10,854
51
Wigan, Lancs
Hi, the solicitors were appointed by a national uk funeral plan company as part of a probate plan connected to them,
The draught 2015 will which only needed to be signed by her late friend has several copies available and was presented to the probate office and rejected by them,
My relative is included in the 2015 will but not as the executor
You say the will 'only needed to be signed' but that is a pretty fatal flaw. If it hasn't been signed it isn't valid, and if the 2003 will is still in existence it hasn't been validly revoked by the 2015 will and remains valid. Are you saying that these solicitors tried to apply for probate using an unsigned will? I can guess which national UK funeral company you are referring to, and they have no authority to appoint solicitors to deal with anything.

I can understand that you feel the 2015 draft will might reflect this person's latest wishes and that those wishes should be honoured, and that would be fine if all the beneficiaries under the 2003 will had the necessary capacity to agree. But your relative doesn't have capacity, and in my opinion no one should agree to compromise her entitlement on her behalf.

Does anyone have Power of Attorney or Deputyship for your relative?
 

jenniferpa

Registered User
Jun 27, 2006
39,448
Would a deed of variation actually permit the executor of an invalid will to act as executor? Would not an administrator need to be appointed?

I have to say, this sounds a bit "sharp practice" all round.
 
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Spamar

Registered User
Oct 5, 2013
7,066
Suffolk
Have just re read this. The earlier will is still valid. The later will includes charities. As Sue said, they are very much a business these days and are notorious about getting their money and they don't care who they upset to do it.
I would like to know who instigated the deed of variation and why were the intended beneficiaries even told about a will that isn't valid?
To me, it stinks.
The earlier will is still valid and should be used.
Let alone what the LA will say about deprivation of assets!
 

Saffie

Registered User
Mar 26, 2011
22,506
Near Southampton
As soon as I reads the words ' national uk funeral plan' I thought this sounded suspicious. I have had a bad experience with one of the 2 main funeral plan companies and will never trust them again.
Some charities are as bad too. After my aunt died leaving her house to one involved with cancer, my sister and I, as her executors, were bombarded with daily phone calls to hasten the sale of the house which we had to clear.

Nero, you haven't yet said if your friend has an LPA in existence or a Deputy appointed. Either way, I agree with others that this is really for the CoP to decide.
 

Pickles53

Registered User
Feb 25, 2014
2,474
Radcliffe on Trent
Hi, the 2015 will was not signed and witnessed properly prior to her death but has been draughted with all her wishes and last instructions and is with her solicitor, everyone else in the 2015 will has agreed to the deed of variation the only one left to sign it is my elderly relative, would the court make the decison and make the 2015 will back in play as she is the only one holding things up, she was the original executor and has been asked to agree to the 2015 execuator, to take over the affairs of the estate.
Of course the beneficiaries of the 2015 will want the deed of variation as they will benefit. But if the 2015 will isn't valid, their opinion is irrelevant. Only the beneficiaries of the 2003 will need to agree. If the lady does not have capacity, even if you think she would have agreed, the only decision that can be made is one which best protects her financial interests ie does not result in her receiving a lower amount. An attorney would not be complying with their duties to agree to a deed of variation and in the absence of an attorney the CoP will decide.

I don't know how much pressure is being put on your relative, but you must resist any emotional blackmail. If the solicitors have messed up, that's their problem to sort out not yours or your relatives' concern.
 

Nero1234

Registered User
Nov 3, 2015
28
Update

As soon as I reads the words ' national uk funeral plan' I thought this sounded suspicious. I have had a bad experience with one of the 2 main funeral plan companies and will never trust them again.
Some charities are as bad too. After my aunt died leaving her house to one involved with cancer, my sister and I, as her executors, were bombarded with daily phone calls to hasten the sale of the house which we had to clear.

Nero, you haven't yet said if your friend has an LPA in existence or a Deputy appointed. Either way, I agree with others that this is really for the CoP to decide.
Their is no LPA or anything else in place