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Surviving partner has dementia and no will

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  • Surviving partner has dementia and no will

    Hello. I am trying to keep this as short as possible and sticking to the facts,

    My sister in law died recently and left a will naming myself and 4 others as equal beneficiaries. Her husband, my brother, is in a care home with dementia and has not made a will. I think my sister in law had power of attorney over my brother's estate etc and made her will when my brother's illness deteriorated. We have now been told by my sister in law's executor that the solicitor has said the Will is now void and all belongings and estate belongs to my brother. I'm not entirely sure if the solicitor deals with this type of thing usually and is more of a property solicitor therefore I'm not convinced of this advice.
    I am my brother's only surviving family and have 3 children. I have been told by someone that once my brother passes away that 50% of the estate will be passed to me and the remaining 50% will be shared how my sister in law wished.
    The question I have is, if my sister in law had power of attorney over my brother's assets, does this mean that the wishes in her Will should be carried out even though my brother is still alive?
    Also, as I am in no way an expert in legal wordings etc what does "All my property of every kind wherever situated over which I have a general power of appointment" mean? This is written in my sister in law's will under the heading Definition of My Estate. Google has kindly informed me that Power of Attorney is different to power of appointment so is this wording something that is in every will etc - I have yet to make a will (but will be doing so very soon due to this situation!) so I have nothing to refer to in order to compare etc.
    Thanks in advance.
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  • #2
    Has the solicitor ( or the executor )said why they consider your sister in laws will to be void ?

    Is the executor a beneficiary under your sister in laws will or would they be better off if her will was void and your brother passed intestate ? ( sorry that's a horrid question )

    Do you have a copy ? Does she leave everything to your brother and you are named as beneficiaries if he had passed before or within x days of her passing ? Or does she leave you something as well / instead of her husband? Or in trust so your brother has a life interest ? and it does pass to you until he passes?

    also has someone taken over as power of attorney for your brother?
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

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    • #3
      Originally posted by Amethyst View Post
      Has the solicitor ( or the executor )said why they consider your sister in laws will to be void ?

      Is the executor a beneficiary under your sister in laws will or would they be better off if her will was void and your brother passed intestate ? ( sorry that's a horrid question )

      Do you have a copy ? Does she leave everything to your brother and you are named as beneficiaries if he had passed before or within x days of her passing ? Or does she leave you something as well / instead of her husband? Or in trust so your brother has a life interest ? and it does pass to you until he passes?

      also has someone taken over as power of attorney for your brother?
      Yes, the executor is a beneficiary under my sister in law's will and will inherit nothing at all if what the solicitor says is true that the Will is void.
      If I understood it right, the solicitor considers the Will void because my brother is the next of kin and still alive.
      I have a copy of the Will. There is no reference to my brother whatsoever in the Will and no one has taken over as power of attorney for him.

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      • #4
        Ok so it is the solicitor rather than the executor. I don't see why your sis in laws will would be void simply because her husband survives her. Unless she made the will before they married maybe ? Then it would be void and her estate would pass under intestacy rules ( so to your brother in the most part depending what the estate is worth ( over £250k?) / then any children they have etc ) if she hadn't made a new will after. Any idea if the Will was made before they married ?
        “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

        Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

        Received a Court Claim? Read >>>>> First Steps

        If we have helped you we'd appreciate it if you can leave a review on our Trust Pilot page

        Find Solicitors offering fixed fees on our sister site - JustBeagle.com

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        • #5
          The Will was made 7 years ago when my brother began to deteriorate. They were married for over 60 years and have no children.

          Comment


          • #6
            Bizarre. Without seeing the Will I don't think it's going to be possible to say but I'd certainly go back to the solicitor and ask for the exact reasoning behind his statement that the will is void. That her husband survives her is no reason to void her will. Even if she had nothing to leave ( eg if everything is owned by her husband ) if wouldn't be reason to void the Will - only that there wouldn't be anything to distribute.

            Is it witnessed correctly ?

            Ill tag des8 and Peridot - see if they have any ideas here.
            “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

            Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

            Received a Court Claim? Read >>>>> First Steps

            If we have helped you we'd appreciate it if you can leave a review on our Trust Pilot page

            Find Solicitors offering fixed fees on our sister site - JustBeagle.com

            Comment


            • #7
              The witnesses were the solicitor himself and his secretary.
              Also, the executor was told by the solicitor that from the day of my sister in laws funeral her duty as the executor had ended but there are still things that need to be sorted out. My sister in laws rented accomodation needs to be cleared etc - and we've not been advised who is responsible for doing that only that all her belongings need to be sold, since my brother had no need for them due to his illness, and the money from their sale is to be paid into the estate. (they had very old furniture of very little value and will not be able to be sold on due to safety reasons). Am I responsible for doing this as I am now my brothers remaining next of kin?
              I have been reminded that it was mentioned to me that the Will is void due to the fact they have a joint bank account and that only assets solely in my sister in laws name can be shared as she requested. With everything that's happened it's difficult to remember everything!

              Thankyou for your help so far.

              Comment


              • #8
                Hi Keeptogether,
                What a hard situation for you. I wonder whether the terminologies are confusing matters here.

                If you sister in law made a Will that has been correctly executed so signed and witnessed in the correct way then it wouldn't be void. I wonder whether the solicitor means that potentially her husband has a claim over her estate if he had been left nothing?

                Joint assets will pass to the survivor so a joint bank account for example although declared in a probate application would not form part of the estate for distribution but would pass straight to her husband. The same would go for any jointly held property.

                It would be helpful to see the wording of the Will and know a bit more about your sister in law's assets both joint and sole (no need to go into detail just whether the house was joint names and were there any sole bank accounts for example.

                If the reason for the solicitors assumption is the will was poorly drafted or your SiL hadn't been advised of any issues that could arise if she had intended her share of any property went to someone other than her husband and then wasn't advised she should sever the tenancy rather than retaining a joint tenancy for example then potentially there may be a negligence claim against the solicitor who drafted the Will.

                I would suggest that the 'executor' (not the solicitor executor) takes some probate specialist advice in this situation but they need to get their facts straight, prepare a ready reckoner of what assets they are aware of and how they are held eg jointly, what happened when etc and take a copy of the Will if they have it. They may be able to get a free or reduced fee initial appointment just to discuss options here.

                As an aside it may be necessary to apply to the Court of Protection for someone to be appointed a Deputy for your brother if he no longer has the mental capacity to make decisions and the only person who had power of attorney is no longer here.
                I am a qualified solicitor and am happy to try and assist informally, where needed.

                Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

                If in doubt you should always seek professional face to face legal advice.

                Comment

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