Wills and the Court Of protection?

Discussion in 'ARCHIVE FORUM: Support discussions' started by dave55, Aug 9, 2007.

  1. dave55

    dave55 Registered User

    Oct 7, 2006
    10
    Does anyone here know of a case where a Will of a person who has been under the Court Of Protection has been dealt with?

    I've read some reports where they have not recognised Wills and/or maladministered them, not giving the Will's beneficiaries their legal due.

    I'm not asking what they SHOULD do, nor what the procedure is.
    I'm not asking about Wills not registered with them, either.

    I'm asking what results has anyone seen, or heard of, from a perfectly valid legal will that the Court Of protection has previously accepted prior to the person's death?

    Do they allow the Will to be administered or do they become obstructive and end up keeping the person's estate by fudging legal processes etc?
     
  2. sue38

    sue38 Registered User

    Mar 6, 2007
    10,854
    Wigan, Lancs
    Hi Dave,

    I'm not sure I totally understand the question you are asking. Once a person dies the Court of Protection has no further role, other than to check the accounts up to the date of death. It is then up to the executors of the will to administer the estate.

    During a person's lifetime the Court of Protection can, on application by certain people including:-

    -a receiver for the patient, or

    -any person who, under any known will of the patient or under his intestacy, may become entitled to any property of the patient or any interest in it, or

    - any person for whom the patient might be expected to provide if he were not mentally disordered, or

    - any attorney acting under a registered enduring power of attorney, or

    - any other person whom the court may authorise to make it.

    order the making of a statutory will.

    You can imagine that this requires a court hearing for the Court to determine basically what a person who is mentally incapacitated would wish to happen in their will if they could have a lucid period.

    The Court of Protection has no jurisdiction to declare an existing will invalid, but may express a view as to the validity of an existing will when ordering a statutory will.

    Is this what you mean?
     
  3. dave55

    dave55 Registered User

    Oct 7, 2006
    10
    #3 dave55, Aug 10, 2007
    Last edited: Aug 10, 2007
    Thank you for that.

    However, it is certainly not what I meant!

    I know all about supposed procedures. What I am asking is what have people SEEN happen? Do the Court honour their own procedures? I'm not asking for explanations of what their rules and procedures are; I'm asking are they put into practice, in real life, at a person's death, or do they usually get funny and find reasons not to give beneficiaries their due from a Will.

    Please don't confuse my question, I can't see how much clearer I can be, folks!

    Through knowing a lot of people through Alzheimers and disabled charities, I've heard of incidents where they've blocked a Will, making excuses that it's invalid etc, when the Wills were well valid and well registered with the Court for years, and they've actually refused to pay out after a person's death.

    I have NOT heard of even one case where they've let a Will be actioned as the person originally set it up!

    What cases do people actually know of, where they've been okay and not interfered with a Will?
     
  4. Kathleen

    Kathleen Registered User

    Mar 12, 2005
    639
    West Sussex
    I have never heard of the scenario you describe.

    As far as I know if a will is drawn up legally it has to be honoured, the named executors of the will administer the will.............not the Court of Protection.

    Kathleen
     
  5. Brucie

    Brucie Registered User

    Jan 31, 2004
    12,413
    near London
    Hearsay is always suspect, and unless you know chapter and verse on these cases you mention, from all sides, then they remain hearsay, I'm afraid.

    ... unless a member of TP has a different story to tell, of course. :)
     
  6. jenniferpa

    jenniferpa Volunteer Moderator

    Jun 27, 2006
    39,438
    The only thing that I've seen related to this is a report in the Times this week where because a family were suspicious of the intentions of a home help they had registered the EPA. As it turned out they were right to be so, and shortly after the individuals death a new will was produced signed after the EPA registration. The family ended up having to go to court in order to have that will set aside, which it was, but 1) the expenses of the case (both sides) had to be paid out of the estate, and 2) it was set aside on the basis that (as far as I could tell from the report) the will maker had made no effort to establish whether the individual had testimantory (?) capacity nor whether there was an EPA.

    The point being, this issue was dealt with in the same way as with any contested will. They may have taken testimony from the guardianship people (although it didn't sound like it) but it wasn't up to them to make the decision.

    This is the link to the report
    http://business.timesonline.co.uk/tol/business/law/article2250722.ece
     

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