Carer being granted Power of Attorney - and 1st executor in a will

[Shane1104]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Update:

There are two competing interest for the estate, either Janet or Cancer Research UK, according to the will.

Testamentary capacity test (deals with the mind's faculties)

Before a will can be legally valid, the deceased person must be of the right mind, so the courts do a test called testamentary capacity, in addition to the writing of the will. If the granddad did not have testamentary capacity, the will is not valid.

How old was your partner's granddad when Janet (the Carer/ appointed executor) first came to work for him as his carer. How long was she his carer? What was the state of his health/ mind when Janet came to work for him, did his health/ mind deteriorate at any point during Janet's employment when the granddad may have been in a position to be influenced, ie would it have taken much to cause him to be put under so much pressure that 'for a quiet life' he would appoint Janet his executor and gift her everything?

Thanks for this Shane. If the carer was not given power of attorney it's likely she is committing theft. If the entire estate has been left to the Carer as there seem to be problems with her, my next question would be the details of the will itself, ie has the carer unduly influenced the deceased person?

Thank you for the reply!

How old was your partner's granddad when Janet (the Carer/ appointed executor) first came to work for him as his carer? 77
How long was she his carer? From 2011 - Death (However from May 2013 she stopped working for Radis care - but continued to "Care" for him, where time allowed (she went to work in a hospital, so rarely visited to "Care" for him - upon her taking holidays - he was left with no carer. No Idea if he told Radis he didn't want a different carer once Jan left.

What was the state of his health/ mind when Janet came to work for him, did his health/ mind deteriorate at any point during Janet's employment when the granddad may have been in a position to be influenced?she was appointed Power of Attorney - guessing he was no longer capable of making financial decisions for himself (Will was signed in Feb 2015, PoA was undertaken March 15 - unaware of actual dates)

In Regards to "Testamentary capacity test" : Banks v Goodfellow (1870), which sets out that a testator has capacity if (1) he understands the nature of making a Will and its effects; (2) he understands the extent of the property of which he is disposing; and (3) he is able to comprehend and appreciate the claims to which he ought to give effect and is not affected by any disorder of the mind that influences his will in disposing of his property -Throughout his time in the hospital (roughly 10 days prior to the death) he was saying to his son "the 2nd executor" "To Expect some money - save it" to me: this interprets that he was unaware that the monies would be infact going to Jan?

[enaid]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Do you know any of the witnesses, either the will or LPA?

[Openlaw15]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Thank you for the reply!

How old was your partner's granddad when Janet (the Carer/ appointed executor) first came to work for him as his carer? 77
How long was she his carer? From 2011 - Death (However from May 2013 she stopped working for Radis care - but continued to "Care" for him, where time allowed (she went to work in a hospital, so rarely visited to "Care" for him - upon her taking holidays - he was left with no carer. No Idea if he told Radis he didn't want a different carer once Jan left.

What was the state of his health/ mind when Janet came to work for him, did his health/ mind deteriorate at any point during Janet's employment when the granddad may have been in a position to be influenced?she was appointed Power of Attorney - guessing he was no longer capable of making financial decisions for himself (Will was signed in Feb 2015, PoA was undertaken March 15 - unaware of actual dates)

In Regards to "Testamentary capacity test" : Banks v Goodfellow (1870), which sets out that a testator has capacity if (1) he understands the nature of making a Will and its effects; (2) he understands the extent of the property of which he is disposing; and (3) he is able to comprehend and appreciate the claims to which he ought to give effect and is not affected by any disorder of the mind that influences his will in disposing of his property -Throughout his time in the hospital (roughly 10 days prior to the death) he was saying to his son "the 2nd executor" "To Expect some money - save it" to me: this interprets that he was unaware that the monies would be infact going to Jan?

Where there any witness when this was said? By the sounds of it this will has not gone to probate yet, is this correct?

[Openlaw15]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Thank you for the reply!

How old was your partner's granddad when Janet (the Carer/ appointed executor) first came to work for him as his carer? 77
How long was she his carer? From 2011 - Death (However from May 2013 she stopped working for Radis care - but continued to "Care" for him, where time allowed (she went to work in a hospital, so rarely visited to "Care" for him - upon her taking holidays - he was left with no carer. No Idea if he told Radis he didn't want a different carer once Jan left.

What was the state of his health/ mind when Janet came to work for him, did his health/ mind deteriorate at any point during Janet's employment when the granddad may have been in a position to be influenced?she was appointed Power of Attorney - guessing he was no longer capable of making financial decisions for himself (Will was signed in Feb 2015, PoA was undertaken March 15 - unaware of actual dates)

In Regards to "Testamentary capacity test" : Banks v Goodfellow (1870), which sets out that a testator has capacity if (1) he understands the nature of making a Will and its effects; (2) he understands the extent of the property of which he is disposing; and (3) he is able to comprehend and appreciate the claims to which he ought to give effect and is not affected by any disorder of the mind that influences his will in disposing of his property -Throughout his time in the hospital (roughly 10 days prior to the death) he was saying to his son "the 2nd executor" "To Expect some money - save it" to me: this interprets that he was unaware that the monies would be infact going to Jan?

Yes Shane this is the case I was considering. I see you have done your research too!

[Shane1104]

Re: Carer being granted Power of Attorney - and 1st executor in a will

The witnesses for the will were:
Estate Planner (Will Writer)
Next Door Neighbour - States didn't know what she was signing - as she was not allowed to see the document
The Witnesses for the PoA were:
The Estate Planner
Jan

Yes, unfortunately i believe it went to probate earlier this week - is that an issue now?

[Openlaw15]

Re: Carer being granted Power of Attorney - and 1st executor in a will

The witnesses for the will were:
Estate Planner (Will Writer)
Next Door Neighbour - States didn't know what she was signing - as she was not allowed to see the document
The Witnesses for the PoA were:
The Estate Planner
Jan

Yes, unfortunately i believe it went to probate earlier this week - is that an issue now?

You can effectively put a block on it by getting a caveat, which effect is for 6 months. By what you have told me it sounds as though fraud was involved and you should consider reporting the situation to the police.

[Openlaw15]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Thank you for the reply!

How old was your partner's granddad when Janet (the Carer/ appointed executor) first came to work for him as his carer? 77
How long was she his carer? From 2011 - Death (However from May 2013 she stopped working for Radis care - but continued to "Care" for him, where time allowed (she went to work in a hospital, so rarely visited to "Care" for him - upon her taking holidays - he was left with no carer. No Idea if he told Radis he didn't want a different carer once Jan left.

What was the state of his health/ mind when Janet came to work for him, did his health/ mind deteriorate at any point during Janet's employment when the granddad may have been in a position to be influenced?she was appointed Power of Attorney - guessing he was no longer capable of making financial decisions for himself (Will was signed in Feb 2015, PoA was undertaken March 15 - unaware of actual dates)

In Regards to "Testamentary capacity test" : Banks v Goodfellow (1870), which sets out that a testator has capacity if (1) he understands the nature of making a Will and its effects; (2) he understands the extent of the property of which he is disposing; and (3) he is able to comprehend and appreciate the claims to which he ought to give effect and is not affected by any disorder of the mind that influences his will in disposing of his property -Throughout his time in the hospital (roughly 10 days prior to the death) he was saying to his son "the 2nd executor" "To Expect some money - save it" to me: this interprets that he was unaware that the monies would be infact going to Jan?

The effect of Banks is that no rational minded person would have not considered his own family except if were coerced (by undue influence). So, it sounds it would fail the capacity test going by what he said immediately prior to his death.

[Shane1104]

Re: Carer being granted Power of Attorney - and 1st executor in a will

would a Caveat halt life insurance payouts - and effectively postponing the funeral?

[Openlaw15]

Re: Carer being granted Power of Attorney - and 1st executor in a will

would a Caveat halt life insurance payouts - and effectively postponing the funeral?

The caveat just stops the unscrupulous person being allowed to keep what they had fraudulently claimed, I believe. The funeral is separate. The insurance, i don't know the details.

[enaid]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Caveat

[Shane1104]

Re: Carer being granted Power of Attorney - and 1st executor in a will

thank you all, i will pass on these responses, and go from there.

each day, more and more seems to be uncovered noting foul play - it's not an easy job letting someone else plan your own fathers funeral.

[Openlaw15]

Re: Carer being granted Power of Attorney - and 1st executor in a will

thank you all, i will pass on these responses, and go from there.

each day, more and more seems to be uncovered noting foul play - it's not an easy job letting someone else plan your own fathers funeral.

Bear in mind Shane the Banks (1870) test is rather ancient common law (case law) so there will also be modern applications of it too.

[Shane1104]

Re: Carer being granted Power of Attorney - and 1st executor in a will

http://www.step.org/high-court-dismi...ntary-capacity

this from 2014 states the banks law is still current?

from here i'm guessing the next step is to speak to his solicitor and explain as mentioned here, gaining a caveat and assesing the situation?

[Amethyst]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Burns v Burns - [2016] - challenging validity of 2005 will on basis deceased lacking testamentary capacity at date of purported execution and not knowing and approving contents - also relies on Banks/Goodfellow - also Cowderoy v Cranfield 2011

I'm not sure it's been discussed actually, was there a will prior to the will leaving everything to the carer ( barring household contents )?

[Shane1104]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Burns v Burns - [2016] - challenging validity of 2005 will on basis deceased lacking testamentary capacity at date of purported execution and not knowing and approving contents

I'm not sure it's been discussed actually, was there a will prior to the will leaving everything to the carer ( barring household contents ).

yes, a previous will (now guessing destroyed - left everything to the 2nd executor in this new will (no mention of the carer)- the current will is just over 12 months old.

Also, to note, the day before he died, a new will was written up - excluded jan from all of this - however, this is unsigned due to the untimely death.