Validity of will

[ostell]

Just been looking the will of an uncle of my wife and am getting a bit confused.

First question for the time being is: Can a person (the cousin) be executor, trustee and beneficiary of the trust all at the same time?

[des8]

Re: Validity of will

No reason why all three posts can't be held by the same person, but if there is any suggestions there might be tensions it might be worth having a third party involved, especially if there is a trust involved.
Is this a sole executor who is one of many beneficiaries?

[ostell]

Re: Validity of will

Thanks for that.

I am having trouble interpreting the intentions of the will. The redacted will is here, 2 pages of will and one of codicil.

George is the testator who died last year, Margaret is his wife, who is still living, and John is their son who is still living and past the age of 18.

I have been trying to work out if the money in the estate is currently John's or Margaret's.

Any ideas?

[des8]

Re: Validity of will

The will appears to leave the whole of the estate to the son. but in the event of his pre deceasing the testator, the testator's wife will inherit it.
There is a redaction prior to the first bequest that might have a bearing on the matter.

I assume you are concerned at how it leaves Margaret.
A surviving spouse can make an application to court (within 6 months of the grant of representation) for reasonable financial provision. Various factors will be taken into account.

[ostell]

Re: Validity of will

It was only names and addresses redacted.

That could explain why he is not too good at looking after his mother if he has all the money.

[des8]

Re: Validity of will

I suspected this was the sad reason for the clarification.
Although the time limit for submitting an application is six months from the date of grant of representation the court has discretion to extend this time limit.
If Margaret is prepared to make such an application I would consider obtaining professional advice initially.

[ostell]

Re: Validity of will

Unfortunately Margaret is suffering from dementia, very badly, so is not in a position to take any action. Probate was granted over a year ago. The Office of Public Guardian suggested to my wife that she apply as a deputy for care, along with her sister. Will think along that line, it may give some leverage.

Margaret is my wife's aunt and has been visited by my wife and her sister from time to time as she was their only living relative. We had been noticing that the contents of the house had been disappearing, akin to a house clearance but before the person had died. The son, John, has tried to block my wife and her sister from visiting by sending really threatening solicitors letters, probably because we could see the terrible state that Margaret was living in. Social Services were no real help in the situation, no common sense at all.

We went to visit last week, Christmas presents and the like. No one in, no indication, phone number unavailable. Social Services not answering the phone. No burial at the husband's grave, no cremations. Found out from the company supplying the carers that the contract had been cancelled at the start of November. They thought that Margaret had gone to Wales.

Eventually contacted social services who confirmed that Margaret had indeed gone to Wales, where her son lives, but would not give any other information because of, as you would guess, Data Protection. Did find the local council in Wales who acknowledged her existence, but again would not give any further details, but was helpful as far as she could be.

It would appear that Margaret, having no assets, has been found a place by her son in a council run care home in Wales close to her sons home. This is conjecture at this point, after a lot of phoning around and almost logical thinking.

So it looks like the son has now put his mother into a council care home, probably with reduced or no fees because she has no assets, and is now able to sell the house to raise the capital for himself.

So he now has all the assets and also control of any of her income and personal assets under an LPA.

Now we know why he never wanted to spend money to make her comfortable. It was his money.

There was one thing on the grant of probate. There was a statement that the gross value of the estate did not exceed £325,000 and the net value of the estate did not exceed did not exceed £156,000. Given that the value of the house was about £350,000 and not many other assets how is the net value derived?

Thanks for your assistance.

[MissFM]

Re: Validity of will

Could an argument be made that the assets "George" apparently bequeathed to his son (although that Will is rather opaque) were not his to leave absolutely but joint assets of the marriage therefore "Margaret" is not, as the son would have it, destitute but entitled to half (at least!) of the assets from the marriage upon George's death?

[MissFM]

Re: Validity of will

Although I can see that if the above were true the government would most likely gollup up those assets in care home fees so it is maybe possible that the son is simply trying to avoid that particular scenario.

If it were me I would go down the "Office of the Public Guardian" route, which would at least give "Margaret" some notional protection from financial abuse by providing official scrutiny.

[des8]

Re: Validity of will

The gross value would have bee declared at "not exceeding £350000" as that is the Inheritance tax threshold, and an estate agent looking eventually to be instructed to sell the property will happily undervalue a property for probate purposes.
The net estate is calculated by deduction of any debts left by the testator, funeral expenses, executors costs etc from the gross amount.

It is inconceivable to me that a son can treat his mother in such a fashion, and I just wonder if the whole arrangement had been planned by George hoping to avoid double IHT (once when he passed on and again when Margaret passes on if she had been the first beneficiary. I personally could not imagine not leaving everything to my wife, and I struggle to understand why one would not. But perhaps that's just me.

At least she seem;s to be near her son, and hopefully he will visit regularly.
If you find out whereabouts in Wales, if the home is near me in West Wales, I'll have a look at it if you want. I know a couple of people who work in care and could possibly make discreet enquiries.

[ostell]

Re: Validity of will

I believe that the house was originally owned by George's father and left to George (only) at about time of his marriage. That's what I've been told but then it may certainly be worth chasing it up.

However the awkward point is that John has an LPA donated by Margaret so he could legitimately sell the property. But will he use the money for himself?

[des8]

Re: Validity of will

Could an argument be made that the assets "George" apparently bequeathed to his son (although that Will is rather opaque) were not his to leave absolutely but joint assets of the marriage therefore "Margaret" is not, as the son would have it, destitute but entitled to half (at least!) of the assets from the marriage upon George's death?

I did consider this but felt it difficult to prove in view of Margaret's condition, and the fact son has LPA

Crossed with ostell, and it becomes even more difficult if the house was solely George's. Marriage does not (in the UK) automatically give joint ownership of assets (I believe)

[MissFM]

Re: Validity of will

I believe that the house was originally owned by George's father and left to George (only) at about time of his marriage. That's what I've been told but then it may certainly be worth chasing it up. I don't think it would mean that the house was exclusively George's ("with all my worldly goods I thee endow" and so forth)

However the awkward point is that John has an LPA donated by Margaret so he could legitimately sell the property. But will he use the money for himself? Hence the wisdom of using the legal protection that is the OPG

I am completely in agreement with Des and neither can I imagine willingly placing a spouse in the situation in which you fear "Margaret" is placed.

I'm in SE Wales and would also (if it's this area) be more than willing to do some local detective work for you.

[MissFM]

Re: Validity of will

I did consider this but felt it difficult to prove in view of Margaret's condition, and the fact son has LPA

Crossed with ostell, and it becomes even more difficult if the house was solely George's. Marriage does not (in the UK) automatically give joint ownership of assets (I believe)

Crossed again, Desmasroll:

I think that the length of the marriage (certainly the yardstick applies in divorce) is significant. In a "long" marriage it's more than likely that assets are considered to be shared equally, however they came to the partnership in the beginning, as I understand it.

[MissFM]

Re: Validity of will

Just a further observation on LPA (at the risk of stating the blindingly obvious) - this actually carries huge responsibility (legal responsibility) to act in the best interests of the party for whom one has this power, so helping oneself at their expense is neither legally nor morally acceptable.