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Will Legacy

sue38

Registered User
Mar 6, 2007
10,849
52
Wigan, Lancs
Thank you this forum has been a great help to me and i appreciate all of the quick replies to the questions, if my relative and the other beneficiery who passed away in the 2003 will who would now carry out the role of executor in the 2003 will ?
The Non Contentious Probate Rules state


NCPR SI 1987/2024 r 35 is now as follows:

''(1) Unless a district judge or registrar otherwise directs, no grant shall be made under this rule unless all persons entitled in the same degree as the person who lacks capacity within the meaning of the Mental Capacity Act 2005 referred to in paragraph (2) below have been cleared off.

(2) Where a district judge or registrar is satisfied that a person entitled to a grant is a person who lacks capacity within the meaning of the Mental Capacity Act 2005 to manage his affairs, administration for his use and benefit, limited until further representation be granted or in such other way as the district judge or registrar may direct, may be granted in the following order of priority—


(a) to the person authorised by the Court of Protection to apply for a grant;

(b) where there is no person so authorised, to the lawful attorney of the person who lacks capacity within the meaning of the Mental Capacity Act 2005 acting under a registered enduring power of attorney or lasting power of attorney;

(c) where there is no such attorney entitled to act, or if the attorney shall renounce administration for the use and benefit of the person who lacks capacity within the meaning of the Mental Capacity Act 2005, to the person entitled to the residuary estate of the deceased.
If there is no one with Deputyship or Lasting/Enduring Power of Attorney the person to apply will be the person entitled to the residue of the estate, i.e. the bit of the 2003 will where it says 'and everything else to X' then X is the person to apply. If the residue goes to more than one person then any one of them can apply.

I would suggest that whoever generally looks after your relative's affairs should take some competent legal advice. Personally I would steer clear of the firm who are trying to use the 2015 draft will.
 

Nero1234

Registered User
Nov 3, 2015
28
Update

The Non Contentious Probate Rules state




If there is no one with Deputyship or Lasting/Enduring Power of Attorney the person to apply will be the person entitled to the residue of the estate, i.e. the bit of the 2003 will where it says 'and everything else to X' then X is the person to apply. If the residue goes to more than one person then any one of them can apply.

I would suggest that whoever generally looks after your relative's affairs should take some competent legal advice. Personally I would steer clear of the firm who are trying to use the 2015 draft will.
Thanks,
The person was left the residue of the estate is the executor who passed away
Its so complicated
 

cragmaid

Registered User
Oct 18, 2010
7,941
North East England
According to HMRC...
VA chain of representation arises where all the executors (IHTM05012) die before completing the administration of the estate. Under s7(1) Administration of Estates Act 1925 (Article 32(1)) or the Administration of Estates (NI) Order, 1979 (in Northern Ireland) ‘an executor of a sole or last surviving executor of a testator is the executor of that testator’. The new executors are automatically appointed without the need for any further formalities. The example below shows how the chain works.
In other words, If an executor dies, their executor assumes the role.
 

garnuft

Registered User
Sep 7, 2012
6,583
Complicated?!
I'll say!

an executor of a sole or last surviving executor of a testator is the executor of that testator’.
What? :)

Legal jargon reads like a Monty Python script.
 

nitram

Registered User
Apr 6, 2011
20,998
North Manchester
‘an executor of a sole or last surviving executor of a testator is the executor of that testator’


In other words, If an executor dies, their executor assumes the role.
should read
In other words, If a sole or last executor dies, their executor assumes the role.

In this case the last executor has not died but they lack capacity to act.
Maybe the COP has to be involved, legal advice should be sought.
 

cragmaid

Registered User
Oct 18, 2010
7,941
North East England
That Nitram
legal advice should be sought
is exactly what I've been saying all along, but whoever is acting at present in the best interests of Nero's relative, ( and somone must be paying her bills, so perhaps he could ask the Care Home to arrange a meeting) must seek legal advice and to make sure that it's independant and nothing to do with the firms that are seeking variation.
 

Nero1234

Registered User
Nov 3, 2015
28
Update

That Nitram is exactly what I've been saying all along, but whoever is acting at present in the best interests of Nero's relative, ( and somone must be paying her bills, so perhaps he could ask the Care Home to arrange a meeting) must seek legal advice and to make sure that it's independant and nothing to do with the firms that are seeking variation.
Hi, as she stays in a CCH I would think that SS & the LC deal with her bills at the CCH such as attendance allowance & pension payments etc.
 

sue38

Registered User
Mar 6, 2007
10,849
52
Wigan, Lancs
Thanks,
The person was left the residue of the estate is the executor who passed away
Its so complicated
Right :eek:. Does the 2003 will say what happens to the residue of the estate if that executor had predeceased the person who made the will?
 

Nero1234

Registered User
Nov 3, 2015
28
Update

Right :eek:. Does the 2003 will say what happens to the residue of the estate if that executor had predeceased the person who made the will?
It says that the testator's other issue does not lapse if he dies before the testator and takes affect as if he died after the testator ?
If that makes any sense ?
 

jugglingmum

Registered User
Jan 5, 2014
5,915
Chester
As I understand it, you can only become executor if you agree to on the death of the testator (will maker), lets call them Z.

So in this case the person named as executor,(let's call them B), who has died before Z, never became an executor, because this role only legally exists once Z has died. So B's executor, notwithstanding the existence of Nero's aunt (A) cannot take on the role of Z's executor.

B is no longer a residuary beneficiary, because anyone who predeceases the testator Z is ignored, ie effectively a black marker pen has been put through their name in the will.

Sue quite rightly asks if another residual beneficiary has died. If the will is silent, from memory of exams you have a mess! But that doesn't matter to Nero's aunt.

As far as Nero's aunt A is concerned, her assets if any must be dealt with by someone, the LA may have taken responsibility if no one else stepped forward. The CH may know how her fees are paid, unless she is in receipt of CHC, this may clear things up. If she is not self funding the LA will be keen to take the house and car to pay the fees I'm sure.

Legal advice needs to be sought, ideally with a solicitor who specialises in complex will/trust issues (STEP qualified is an indicator - STEP stands for Society of Trust and Estate Practitioners - both solicitors and accountants can qualify, for their respective areas - I am an accountant, and I sit next to my office trust dept, although I specialise in corporate tax).
 

jugglingmum

Registered User
Jan 5, 2014
5,915
Chester
It says that the testator's other issue does not lapse if he dies before the testator and takes affect as if he died after the testator ?
If that makes any sense ?
issue in this context refers to a child - perhaps it would be clearer if the exact relationships were defined
 

jenniferpa

Registered User
Jun 27, 2006
39,446
I suspect you've missed some words out there and it's difficult to tell if the gift will go to the children of the person who predeceased the testator, or to the other children of the testator. I suspect the former. If the "lapse" language wasn't there the gift would fail, which I believe means the residual estate would be distributed according to the intestacy rules.
 

Nero1234

Registered User
Nov 3, 2015
28
Update

issue in this context refers to a child - perhaps it would be clearer if the exact relationships were defined
The executor who died was the cousin of the lady who died my aunt was just a friend
I think this could go on for a very long time
And if my aunt passed away before the will is legal what would happen then ?
The testator never had any children just a step daughter who she was very close too and was set to be the main beneficiary in the 2015 will with the highest percentage, so were would she stand if she was to challenge the 2003 will as the 2015 will had her step mums last wishes and instructions on it to be carried out
Could a court decide in her favour if it was presented to a judge
 
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jenniferpa

Registered User
Jun 27, 2006
39,446
Assuming the 2003 will is the only valid will, then anything your aunt inherited would pass to her own beneficiaries as per her will.
 

Beate

Registered User
May 21, 2014
12,040
London
She would have lost her inheritance and I guess the others could then sign the deed of variation without her.
 

jenniferpa

Registered User
Jun 27, 2006
39,446
She would have lost her inheritance and I guess the others could then sign the deed of variation without her.
Um no she wouldn't. You just have to outlive the testator (by seconds even) for the gift to pass. And the OP's aunt has done that.

The testator never had any children just a step daughter who she was very close too and was set to be the main beneficiary in the 2015 will with the highest percentage, so were would she stand if she was to challenge the 2003 will as the 2015 will had her step mums last wishes and instructions on it to be carried out
Could a court decide in her favour if it was presented to a judge
It is extremely unlikely in my view. I think the only possibility would be under the Inheritance (Provision for Family and Dependants) Act 1975. Did she make any provision for the step-daughter in the 2003 will?

But I do feel the step-daughter might have a case against the solicitors if they dilly-dallied on getting the will signed.
 

Nero1234

Registered User
Nov 3, 2015
28
Update

Um no she wouldn't. You just have to outlive the testator (by seconds even) for the gift to pass. And the OP's aunt has done that.



It is extremely unlikely in my view. I think the only possibility would be under the Inheritance (Provision for Family and Dependants) Act 1975. Did she make any provision for the step-daughter in the 2003 will?

But I do feel the step-daughter might have a case against the solicitors if they dilly-dallied on getting the will signed.
Yes the stepdaughter is named in the 2003 will as far as I am aware not legally adopted tho
 

garnuft

Registered User
Sep 7, 2012
6,583
The stuff of nightmares and the easy way for money to be gobbled up by Solicitors.

Your Aunt is due her inheritance, someone doesn't like it, sit tight.
Say NO on her behalf.


Sent from my iPhone using Talking Point
 

jenniferpa

Registered User
Jun 27, 2006
39,446
The stuff of nightmares and the easy way for money to be gobbled up by Solicitors.

Your Aunt is due her inheritance, someone doesn't like it, sit tight.
Say NO on her behalf.


Sent from my iPhone using Talking Point
Truer words were never spoken.

Really, I've said it before and I'll say it again: tell them your aunt does not have capacity to sign this deed of variation, and politely or otherwise, tell them to take a hike.
 

jenniferpa

Registered User
Jun 27, 2006
39,446
Yes the stepdaughter is named in the 2003 will as far as I am aware not legally adopted tho
So I don't think she'll have a case. Not because of the adoption or lack thereof, but because she got a legacy which I'm assuming wasn't derisory. If she had been ignored, maybe.

I don't wish to pry but are we talking hundreds, thousands, tens of thousands or what?