Power of attourney help needed
Discussion
Hi peoples, im hoping there is a solicitor reading this who can offer me some advice, my Mum has enduring power of attourney over her mum(my nan who has altzheimers) who has written a will leaving her home and contents divided between her children( my mum, her brother and sister) so it was a three way split and nice and simple. One of the children passed on last year leaving only two siblings to share the property in the will, as the will stands will the money be divided between the two siblings left alive or would the deceased's share go to there next of kin?, also how easy is it to get the will changed to reflect the above as my nan has altzheimers and mum has power of attourney(my mum is a beneficiary as well)?, thanks in advance for any kind words of wisdom
Paul
Paul
IANAL....
A lot depends on how the original will was written. A well-drafted one will have scenario's in it, e.g. house split evenly between survivors of X, Y and Z - if none of x,y,x out-live Nan then whatever...but this might not be the case in this will.
I suppose the only answer i "it depends exactly what is written in the will".
Hope that helps, a little!
A lot depends on how the original will was written. A well-drafted one will have scenario's in it, e.g. house split evenly between survivors of X, Y and Z - if none of x,y,x out-live Nan then whatever...but this might not be the case in this will.
I suppose the only answer i "it depends exactly what is written in the will".
Hope that helps, a little!
As tigger1 says (and IANAL either, but have had to deal with Wills and probate in my family), it does depend on what the Will says. If it simply divides the estate three ways between siblings with no allowance for predeceasement [apologies for the Americanism], the deceased sibling's share will pass according to their Will. I assume this is a Lasting Power of Attorney Property and Affairs (not that it matters). Power of Attorney does not allow the holder to make a new Will for the Donor. ONly the Court can do this. The Attorney should apply to the Court for this - Streaky
I'd echo the above (IAAL but not a Probate lawyer!), what is your mum trying to do? Does she want to re-write the will to share the property between the two remaining siblings rather than it going to the deceased child's next of kin? Did your (??) aunt have children or is the problem that the share is going "outside" of the family in your mum's eyes?
As said your mum can't make a will for your Nan, I would hope your Nan's will does provide that a share goes to any children etc. of your aunt OR that it reverted to the other siblings in which case that was your Nan's intention and I think you'd struggle to persuade a Court to alter the will (assuming that she was of sound mind when she made it - think carefully about opening this can of worms if you want to try to say she wasn't!).
BTW - this is the stuff that family disputes are made of so I'd suggest you get decent advice!
As said your mum can't make a will for your Nan, I would hope your Nan's will does provide that a share goes to any children etc. of your aunt OR that it reverted to the other siblings in which case that was your Nan's intention and I think you'd struggle to persuade a Court to alter the will (assuming that she was of sound mind when she made it - think carefully about opening this can of worms if you want to try to say she wasn't!).
BTW - this is the stuff that family disputes are made of so I'd suggest you get decent advice!
my nan provided in the will for her 3 children to split the house and contents between them and that all the grandchildren get an equal share of the savings, so everyone is catered for fairly and equally, now one of the siblings has passed away the obvious way to sort it out would seem to split the house between the two remaining children, the family dispute will be a big one methinks
The will may already stipulate the share goes to the Grandchildren...
From what little I know, wills can be changed if the benefactors all agree...so if the two remaining siblings agree to offer a third share to the remaining children then so be it, they could also do this unofficially anyway
My Grandparent's will bypassed their children in favour of the Grandchildren as my Father had already died when it was written.
Do you see conflict in the future or could it be resolved amicably?
wrinx
From what little I know, wills can be changed if the benefactors all agree...so if the two remaining siblings agree to offer a third share to the remaining children then so be it, they could also do this unofficially anyway
My Grandparent's will bypassed their children in favour of the Grandchildren as my Father had already died when it was written.
Do you see conflict in the future or could it be resolved amicably?
wrinx
Edited by wrinx on Wednesday 2nd January 18:48
twistedsanity said:
my nan provided in the will for her 3 children to split the house and contents between them and that all the grandchildren get an equal share of the savings, so everyone is catered for fairly and equally, now one of the siblings has passed away the obvious way to sort it out would seem to split the house between the two remaining children, the family dispute will be a big one methinks
I'm not sure I'd agree with you that your suggestion is the obvious way to sort it out 
Presumably when your mum dies you expect to inherit from her which will include monies she inherited from your Nan? You don't expect to have to pay it back to the estate or to distribute it back to your mum's sibling? How would you feel if your mum died tomorrow and the remaining sibling said "thanks I'll have all of it"?
If you're going to try to pull this one off you'll need a good lawyer and expect to have some VERY pissed off relatives!
If it was a professionally drawn will I would expect that it provides for your aunt's share to go to her children in the event that she dies before your Nan and if it were my family I would respect her wishes.
i can see some very peed off relatives anyway, it an unfortunate situation caused by greed-
i would be more than happy to see my mum blow the lot on holidays or knitting needles and am not in the least bit concerned about what i may inherit later down the line, she hasnt had an easy life and deserves some fun, tbh i hadnt even thought about it, its a future problem that i would rather keep out of but as the eldest son i feel ill have little choice other than to "support" my mum, hopefully if i can find out the facts everybody can sort themselves out before it gets to a war like situation, thanks again for the advice
i would be more than happy to see my mum blow the lot on holidays or knitting needles and am not in the least bit concerned about what i may inherit later down the line, she hasnt had an easy life and deserves some fun, tbh i hadnt even thought about it, its a future problem that i would rather keep out of but as the eldest son i feel ill have little choice other than to "support" my mum, hopefully if i can find out the facts everybody can sort themselves out before it gets to a war like situation, thanks again for the advice
wrinx said:
The will may already stipulate the share goes to the Grandchildren...
From what little I know, wills can be changed if the benefactors all agree...
This is what I believe is known as a "Deed of Variation", and is done when (ALL) the beneficiaries decide they want the money to be shared differently to how the will has drafted, and agree to split it differently. This is often done for tax purposes, or just to allow other people to benefit from the estate of the deceased.From what little I know, wills can be changed if the benefactors all agree...
My best (IANAL!) bit of advice re:Wills is to go see a Private Client solicitor (Law Society will list these, and even tell you which have further qualifications such as STEP). They should give you a good idea quickly of what options you have.
ETA: I should probably add that my "knowledge" is based on 2nd hand learning from MrsTigger1 who is a Private Client solicitor - but I am not that way inclined
Edited by tigger1 on Wednesday 2nd January 22:16
Dude, your mum is wrong IMO. The only fair thing to do is to give that 1/3 to the kids, and put it in trust till they are 25 or something.
Chopping that family branch out of a 1/3 is bang out of order.
Your nan would NOT want that to happen.
Tell your mum she is being selfish over this, and that you think the fairest thing would be for those kids to still get there share.
Honestly, poor form. I hope your mum is just a little confused/muddled, and that some sensible advice will let her see the wood for the trees and she will make the correct decision.
Chopping that family branch out of a 1/3 is bang out of order.
Your nan would NOT want that to happen.
Tell your mum she is being selfish over this, and that you think the fairest thing would be for those kids to still get there share.
Honestly, poor form. I hope your mum is just a little confused/muddled, and that some sensible advice will let her see the wood for the trees and she will make the correct decision.
Slight cross over in to my own field here (IANAL) and I agree with the last post.
Consider that your Nan had died 32 days ago. Then your Aunt dies tomorrow? Your Aunt's share will be split in accordance with her own Will or if she died intestate (no will) then in accordance with the rules of intestacy. I really cant see that your Aunt's share would ever have been intended to revert to her siblings, ie your mum and surviving bro/sis.
It would be very unlikely that there is not a clause in your Nan's Will that doesn't cover this situation. The reason I mentioned 32 days is that the sort of clause I am referring to usually contains a proviso that the beneficiary has to survive a set amount of time (28 days typically) or they are deemed to have pre deceased the donor (your Nan). Hope this makes sense and is clear?
Have you seen the Will? Have a copy?
ANd get proper advice, not PH bar chat!!! (And that includes the above)
Consider that your Nan had died 32 days ago. Then your Aunt dies tomorrow? Your Aunt's share will be split in accordance with her own Will or if she died intestate (no will) then in accordance with the rules of intestacy. I really cant see that your Aunt's share would ever have been intended to revert to her siblings, ie your mum and surviving bro/sis.
It would be very unlikely that there is not a clause in your Nan's Will that doesn't cover this situation. The reason I mentioned 32 days is that the sort of clause I am referring to usually contains a proviso that the beneficiary has to survive a set amount of time (28 days typically) or they are deemed to have pre deceased the donor (your Nan). Hope this makes sense and is clear?
Have you seen the Will? Have a copy?
ANd get proper advice, not PH bar chat!!! (And that includes the above)
its probably a bit of confusion on her part as well, i suppose its the way my nan phrased it years ago, her grandchildren will get the savings shared equally and her children will get the house, i appreciate the two points of view and would really rather bury my head in the sand and let em sort it out between themselves, but life's never that easy, thanks for all of the comments.
from how it appears at face value the house was due to be split 3 ways and go into 3 different branches of the family thus benefiting many people and potentially all members,
I dont think its right that those lower down one family dont get the money that would eventually go to them/benefit them because the head of that family has passed on.
Also ask your mum if it is right to claim something that most definatly WAS NOT left to her? I agree with another poster in that you can also turn the question round.
"what would you like to see happen to your share of the money should you die before you inherit it?
I suspect she would want you (and your bro's/sisters?) to have her share, not her brother to cop for the lot. The answer to this question will give her the answer to the whole affair (should she answer honestly!)
on a final note its an issue of right and wrong and morals, hiding behind what the will allows doesnt make certain courses of action ok.
I dont think its right that those lower down one family dont get the money that would eventually go to them/benefit them because the head of that family has passed on.
Also ask your mum if it is right to claim something that most definatly WAS NOT left to her? I agree with another poster in that you can also turn the question round.
"what would you like to see happen to your share of the money should you die before you inherit it?
I suspect she would want you (and your bro's/sisters?) to have her share, not her brother to cop for the lot. The answer to this question will give her the answer to the whole affair (should she answer honestly!)
on a final note its an issue of right and wrong and morals, hiding behind what the will allows doesnt make certain courses of action ok.
Edited by Trueman sparks on Thursday 3rd January 18:30
I'd have a word with your mum mate, see if you can get her to see it this other way - it does make more sense.
(Especially if you think that one family branch here has lost one of their parents, which probably means that, if anything, that branch needs the money more than your mum does.)
I know it will be hard to have a chat if she has got this in her head, but as youll be arguing for you (as in your branch) to get less money, she will have to concede that your point of view can only be one of fairness.
(Especially if you think that one family branch here has lost one of their parents, which probably means that, if anything, that branch needs the money more than your mum does.)
I know it will be hard to have a chat if she has got this in her head, but as youll be arguing for you (as in your branch) to get less money, she will have to concede that your point of view can only be one of fairness.
twistedsanity said:
All very valid comments, im sure she will see it differently if explained in a different context, thanks again for all the input, here's hoping it doesnt turnout too bad!!
Best of luck. Unpleasant position for you to be in, but to be frank, if there is going to have to be a bit of a discussion about this, it's far, far better that it happens between you and your Mum rather than between your Mum and anyone else in the family. There's no way she might think you had an ulterior motive or were acting in self-interest so she'll know you're being honest. If she has the dicussion with any of the grand children who would have been disadvantaged by her decision, she'd only be human to be suspicious of their motives.If her fear is that the more people who inherit a proportion of the house, the less likely it is to actually stay in the family ... i.e. it will have to be sold to realise its cash value ... you might suggest that she might well be able to agree with the other benficiaries that a mortgage be taken out on the property in order to convert a proportion of it into cash which could be used to buy out the interest of those beneficiaries who would prefer cash rather than owning a portion of the house.
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