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Courts of Protection and Negligent Will Drafting

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  • Courts of Protection and Negligent Will Drafting


    Not knowing where to post this thread as I have several things I need advice on I've decided to try posting here.

    My first concern is whether or not I need to apply to the Courts of Protection to be a deputy for my sister who has dementia and no physical or mental capacity. I believe her husband had Power of Attorney but he sadly passed away a few weeks ago. They have no children and I am her next of kin. I have been contemplating whether I should apply to be a deputy for her but I have been told it's a lengthy, costly process, she is in her late eighties and very frail so I don't know if there's any point in proceeding. She is in a care home and the staff know me well as I used to visit her once a week from the first day and now visit twice a week since she lost her husband. They know that I am her next of kin and always consult me with anything regarding her care therefore I don't know if there's any need to apply to be her deputy.

    Secondly. I suspect her husband had been given very poor advice by his solicitor when drafting his Will. Either he expected my sister to pass away first or his solicitor failed to advise him properly. He made a Will 6 years ago when my sister went into the care home. In his Will he wanted to distribute his estate between 7 beneficiaries in equal amounts but his solicitor now says his Will is ineffective as all of their estate etc are in both of their names everything is now owned by my sister. I didn't come across a copy of a Will for my sister when I cleared the home they once shared so don't know if she has one or not. I was told by the same solicitor that since I am her next of kin I will inherit all of her estate after her passing. Hearing this I decided, when the time comes, I will carry out the wishes of my brother in law if it transpires my sister hasn't made a Will as I am confident this is what she would have wanted but now I've learnt I might only receive half of the estate as our estranged brother (who is now deceased) has a surviving son and will inherit the other half. I know for a fact this is something neither of them would have wanted!

    I am now at a loss what to do next. Was the solicitor at fault, knowing the circumstances of my sister's illness, not to advise my brother in law accordingly to make preparations in the event she should survive him and was the solicitor at fault for not explaining to my brother in law his Will would be void? If he had LPA did this mean their assets, even if the assets were jointly owned, mean his Will should still be carried out as he wished?
    I wonder if there is a way of finding out if my sister has drafted a Will?

    Thank you.
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  • #2
    Hi Nurture,
    I'm sorry to hear of your brother in law's passing. It must be difficult trying to unravel all this!

    A few questions I'm afraid, the reason for being appointed a deputy would be to enable you to deal with your sisters finances and property. If all hers and her husband's assets were in joint accounts and/or names then they would automatically pass to your sister, hence the solicitor's comment regarding any distribution of the estate to someone other than his wife being void, although anything held in his sole name could potentially pass under his Will.

    In the usual course of things when taking Will instructions it would be usual for the lawyer to ask questions about someone's finances and establish what they own solely and what are joint assets that would pass to the survivor. If all your brother in law's assets were joint it would be sensible to then ask why he thought he could leave things to others when there would be nothing to leave. I suspect he told the lawyer he anticipated his wife passing first so he didn't believe there could be a problem. Who is the executor of his Will?

    Is your sister having to pay for her own care at the home? Do you know how this being dealt with? I suspect you will need to take some specialist advice on this from a private client lawyer. If your sister does not have an attorney and there is a potential claim then she would need someone appointed to deal with this for her. In addition if there are issues around her funding then again it may be sensible to apply to be appointed a deputy.

    As far as any Will of her's in concerned I'm afraid you will have difficulty establishing whether a Will exists. In Eng/Wales there is no central register of Wills and until someone dies a Will won't be released. Client confidentiality will prevent the information being forthcoming I suspect.

    If there is no Will then the solicitor is correct, whatever assets remain on your sisters passing will be distributed according to the Intestacy Rules which are very strict and in the event you and the estranged brother's son are the only surviving relatives then the estate would be divided equally between the two of you. What is the likelihood of there being any assets left when your sister's time comes if she is having to fund her care home? It may be immaterial who gets what if the estate is practically empty?

    See if you can find a lawyer who will do a free initial or reduced fee appointment to talk through your options, but here if you have any other thoughts that we may be able to give you pointers for.
    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.


    • #3
      Thank you for replying to me. I apologize for taking so long to to respond.

      I have now discovered that all 7 would-be beneficiaries stand to lose £20,000.00 each because of the situation of my brother in law's Will being void and the probability of my sister passing away intestate. It's been a big shock that they had that amount of savings! My sister's care is provided for by the NHS as she receives continuing care because of her dementia so I assume this is how her being in a care home for the past 6 years hasn't eaten into their savings.

      I know I could stand to inherit £70,000.00 but I honestly do know that neither she nor her husband would have wanted my other brother's son to inherit anything let alone the other £70,000.00!

      I have been in contact with the other named beneficiaries of my brother in law's Will to discuss the likelihood of us jointly approaching a solicitor to discuss our options. One of the beneficiaries has a family member who is a solicitor who has advised us to fight this all the way and to make a claim against my brother in law's solicitor for negligent Will drafting for failing to advise my brother in law to sever the tenancy in regards to their joint assets etc. But this family member is unwilling to take the case on as he is an acquaintance of my brother in law's solicitor!
      After making a request to the Office of the Public Guardian to establish whether or not my brother in law had Power of attorney with regards to my sister (as he always insisted that he had ) the outcome is that there is no record of one. Could this fact be damaging if we proceed in a claim against the solicitor or would it not matter?
      The beneficiary whose family member is a solicitor also mentioned I could apply to the courts of protection to be my sister's deputy and this could enable me to make a Statutory Will on her behalf enabling me to carry out the wishes of my brother in law as stated in his Will. Since my sister's capacity was worsening at the same time my brother in law made his Will, I sincerely believe his wishes should be met and hope there is a lawful way of doing so.


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