• We're currently experiencing technical issues with our newsletter software, so our Dementia Talking Point monthly updates have been put on hold for now. We hope to restart the newsletter soon.

    Find out more >here<.

Will Legacy

nitram

Registered User
Apr 6, 2011
20,884
North Manchester
"If my aunt has not made a will which I believe she has not and is now incapable of doiñg so or appointing a LPA or guardian, what happens then would it all become intestate ?"

When your aunt dies not having made a will any assets she has at that time will be distributed by the laws of intestacy.

Powers of attorney lapse on the death of the donor.

I would do as others have said and concentrate on getting the 2003 will proved at the probate office and tell anybody asking your aunt to sign a deed of variation that unfortunately she lacks capacity and therefore cannot agree to and sign the document. What action they then take is up to them.

(I hope this thread has gone some way to convincing everybody that LPAs are as important as wills)
 

Pickles53

Registered User
Feb 25, 2014
2,474
Radcliffe on Trent
https://www.citizensadvice.org.uk/r...t-if-there-is-no-will-the-rules-of-intestacy/

This explains the current rules on intestacy quite well. It's looking ahead and not strictly what this thread is about, but one thing you could do is check there is an up to date list of your aunt's relatives' names and addresses so that the right people can be contacted if your aunt should pass away.

Incidentally, if there are court proceedings about the present scenario, if the 2003 will stands your aunt would still inherit as a beneficiary even if she passed away before those proceedings concluded. My mother died while probate was still in process for a cousin's will, but the amount left to her was still paid to her estate and thence to the beneficiaries of mum's will.

As others have said, the ball is in the court of those trying to get a deed of variation. You honestly believe your aunt lacks capacity to sign any legal document and this is supported by her carers. You cannot know what her wishes would have been and cannot assume she would have been willing to agree to any variation if she did have capacity. It would not have been in her financial interest to do so and might well be seen as deprivation of assets by the LA.

If someone else wants to challenge this, it's up to them to take the initiative and pay for any legal process required. Just keep saying this, politely and firmly. Don't worry about what happens to the property if your aunt does become the owner of a house/car. Even with a simple undisputed will it took almost a year before the beneficiaries of mum's will received any payments. There will be plenty of time to deal with those issues later and I think it's confusing the issue which has to be dealt with now.
 
Last edited:

Nero1234

Registered User
Nov 3, 2015
28
Update

https://www.citizensadvice.org.uk/r...t-if-there-is-no-will-the-rules-of-intestacy/

This explains the current rules on intestacy quite well. It's looking ahead and not strictly what this thread is about, but one thing you could do is check there is an up to date list of your aunt's relatives' names and addresses so that the right people can be contacted if your aunt should pass away.

Incidentally, if there are court proceedings about the present scenario, if the 2003 will stands your aunt would still inherit as a beneficiary even if she passed away before those proceedings concluded. My mother died while probate was still in process for a cousin's will, but the amount left to her was still paid to her estate and thence to the beneficiaries of mum's will.

As others have said, the ball is in the court of those trying to get a deed of variation. You honestly believe your aunt lacks capacity to sign any legal document and this is supported by her carers. You cannot know what her wishes would have been and cannot assume she would have been willing to agree to any variation if she did have capacity. It would not have been in her financial interest to do so and might well be seen as deprivation of assets by the LA.

If someone else wants to challenge this, it's up to them to take the initiative and pay for any legal process required. Just keep saying this, politely and firmly. Don't worry about what happens to the property if your aunt does become the owner of a house/car. Even with a simple undisputed will it took almost a year before the beneficiaries of mum's will received any payments. There will be plenty of time to deal with those issues later and I think it's confusing the issue which has to be dealt with now.
The thing is we really do think she would have liked to agree to her best friends last wishes and instructions if thats what her friend wanted to happen in the new 2015 will as the 2015 draught will was only made a couple of months ago before she died, and she would have liked to have respected those wishes and instructions to make her friend happy so is there anyway that she can fulfil her friends instructions that she left could she perhaps get somone to do this for her ?
 

mancmum

Registered User
Feb 6, 2012
403
And this is at the crux of using a POA

Are you rigidly to act only in the perceived financial best interests of the donor of the POA or are you to act as they would have acted in this situation. I take on board all the stuff about a will not being a will unless signed and this is totally correct. However recipients of legacies may agree to a deed of variation.

In our family this was done to allow someone who viewed as the grandchild of the family to receive money when one of my father's brothers died intestate and the step child would have inherited nothing. All six of the beneficiaries agreed that he regarded this child as his own even though he was not the biological grandfather. There is often a strong feeling that after a death things should be 'right' - not everyone is there to grab the money.

The question is how does someone prove what the wishes of a person with Alzheimers would have been. I understand that you can renounce a legacy and there then appears to be an argument that this is not deprivation because the money never belonged to the person in the first place.

I think virtually everyone would accept that the most normal recipient of this money would be the step child. When there was a dispute regarding an intestacy we were advised to seek binding mediation rather than go through the courts. The fees involved in doing this would likely wipe out the legacy.
 

Saffie

Registered User
Mar 26, 2011
22,514
Near Southampton
Are you rigidly to act only in the perceived financial best interests of the donor of the POA or are you to act as they would have acted in this situation. I take on board all the stuff about a will not being a will unless signed and this is totally correct. However recipients of legacies may agree to a deed of variation.

In our family this was done to allow someone who viewed as the grandchild of the family to receive money when one of my father's brothers died intestate and the step child would have inherited nothing. All six of the beneficiaries agreed that he regarded this child as his own even though he was not the biological grandfather. There is often a strong feeling that after a death things should be 'right' - not everyone is there to grab the money.

The question is how does someone prove what the wishes of a person with Alzheimers would have been. I understand that you can renounce a legacy and there then appears to be an argument that this is not deprivation because the money never belonged to the person in the first place.

I think virtually everyone would accept that the most normal recipient of this money would be the step child. When there was a dispute regarding an intestacy we were advised to seek binding mediation rather than go through the courts. The fees involved in doing this would likely wipe out the legacy.
The whole point of this thread is that there is no POA.
Nero doesn't hold it for her relative and neither does anyone else.
Therein lies the problem.
 

Kevinl

Registered User
Aug 24, 2013
4,764
Salford
The question is how does someone prove what the wishes of a person with Alzheimers would have been.
In this case the person concerned had made a new will but it was only a "draft" as it wasn't signed so cannot be used. Their intentions are clear, however, as it is unsigned it cannot be used and so the older 2003 will is the version that HAS to be followed in law.
As no one has a POA a deed of variation cannot legally be made so the only option as I see it is to I everyone inherits as per the 2003 will, then informally you do as you wish with the money.
This may have tax implications and it relies on everyone doing the right thing, however, as I said earlier people's attitudes can change when money is involved specially when you're asking them to give it away.
K
 

Nero1234

Registered User
Nov 3, 2015
28
Update

Are you rigidly to act only in the perceived financial best interests of the donor of the POA or are you to act as they would have acted in this situation. I take on board all the stuff about a will not being a will unless signed and this is totally correct. However recipients of legacies may agree to a deed of variation.

In our family this was done to allow someone who viewed as the grandchild of the family to receive money when one of my father's brothers died intestate and the step child would have inherited nothing. All six of the beneficiaries agreed that he regarded this child as his own even though he was not the biological grandfather. There is often a strong feeling that after a death things should be 'right' - not everyone is there to grab the money.

The question is how does someone prove what the wishes of a person with Alzheimers would have been. I understand that you can renounce a legacy and there then appears to be an argument that this is not deprivation because the money never belonged to the person in the first place.

I think virtually everyone would accept that the most normal recipient of this money would be the step child. When there was a dispute regarding an intestacy we were advised to seek binding mediation rather than go through the courts. The fees involved in doing this would likely wipe out the legacy.
So what would be the best way foward to make sure that her step daughter and the charities at least inherit what her stepmum wanted her to have we think that would at least be the most decent thing to do for her best friends wishes
Is there anyway to make sure that she at least gets what her step mum really wanted in the 2015 ( Draft Will ). Could we ask the solicitors to draw up something to try to make sure she and the charities get what she wanted
 
Last edited:

nitram

Registered User
Apr 6, 2011
20,884
North Manchester
The 2003 will has to be proved at the probate office before anything else can be done, if sole executor (the Aunt) lacks capacity somebody will have to apply to the probate office for letters of administration. The probate office and/or the CPO should be able to advise who should do this.

I would try to ensure that the solicitor who saw fit to present a draft will unsigned by the testator to the probate office is not involved in the proving of the 2003 will.

Once the will is proved the problem of a deed of variation arises, only people disadvantaged by the deed need to sign but as the Aunt will have inherited a car and property her acceptance appears necessary. Only the COP can decide this.

If there is no deed of variation there is nothing to stop the beneficiaries giving the money to A N Other in line with the 2015 document. There may be tax implications and in the case of the Aunt deliberate deprivation of assets accusations.
 

Raggedrobin

Registered User
Jan 20, 2014
1,427
What a mind-boggling business. To me, if you want to honour your Aunt's 2015 wishes, I agree with those who have said you would need to seek independent legal advice on your Aunt's behalf.

I was lucky enough to be the unexpected beneficiary of a will some time ago, because it had been badly worded and things had changed since the will had been written. I had been left cash but a house which was willed to two others had been sold and therefore the cash was a larger amount and they got nothing.The executor and the solicitor contacted me and asked if I would sign a deed of variation, which would honour the intentions of the deceased and mean I lost a substantial amount that I could inherit.

It was a very difficult decision but in the end I gave away the additional money because I couldn't live with knowing the money had come to me due to a technical hitch and wasn't the deceased's intention. We all signed the deed of variation. We all knew each other which perhaps made the decision easier.