Gifted money

karenh1962

My late mum made me LPA. This was applied for on the 12 Aug 2012, the same day the will was executed, but not granted until Feb this year as mum was still well enough to manage her own affairs. On the 30 July 2012 mum made a will with a solicitor at her house. On this same day she gifted me £30,000 by way of a cheque. She asked the solicitor if this was ok to do and he confirmed it was. We are now embroiled in a will battle, my estranged sister is contesting the will on the grounds of mental capacity and undue influence. We went to talk things through with our solicitor and at first she was concerned that the cheque may be deemed as a problem and have to be paid back into the estate, but then said because the cheque cleared within a 10 day period of it being made then it would not fall into this bracket. Could anybody shed some light on this? She really didn't make it clear and my head was buzzing. It was something to do with applying for the LPA regardless of it being granted or in the applying stage. It would be a major problem If I have to pay it back as most of it was spent paying off my debts.

dzug1

I think the solicitor is saying that as the gift was made (ie the cheque cleared - anyone can write any date on a cheque) before the LPA was completed then even if your sister succeeds in overturning the will then that gift doesn't form part of the estate.


At the time the will and LPA were made your Mum should have been of sound mind - the solicitor and any witnesses should be able to confirm that. Someone (solicitor, doctor, friend) will have had to sign the LPA form saying that your Mum understood what she was doing.

Does your sister actually have any evidence of her own - concocted or otherwise? Just saying it must have been like that won't get her anywhere.

karenh1962

thanks dzug. I just couldn't understand what she meant. The LPA came into force in February 2013, I have a doctors letter confirming he saw mum and mum understand the contents and the reasons behind the LPA and fully approved it. My solicitor seemed to push this aside as if it didn't matter. My solicitor is now gathering the witness statements and is writing to the other side to inform them of is. My sister has no witnesses (what we are aware of). But my solicitor seems to think we will have to come to an agreement rather than a battle in court which would still see my sister inherits something.

John_Pierpoint

Under this "new" LPA system, as I remember it (*), the family should have/can have a representative that has the responsibility to keep the family in the picture. Are you performing both roles? Was the sister correctly informed about what was happening? Did she object at the time?

Are you saying that you "sat" on the paperwork, not wanting to incur the costs involved up front and it was not until (say) Xmas time that you got a round tuit and submitted the paperwork?

Will mum's estate incur InHeritance Tax (IHT), when the £30k is added back (NOT paid back) into the calculation?

(*) I was involved in the early stages of this "new" LPA system, when it commonly took 6 months for the power to be granted, during which time the relative involved died.

Who signed the form to certify that mum was of sound mind? The solicitor had a verbal punch up with the relative's doctor, it was not clear to me if the disagreement was about the doctor's responsibility to sign the form or that he just wanted to be paid for the signature.

Karen, our posts have crossed, but it would be useful to know just what documentation you have.

Obliviously the cost of "discovery" will be substantial and if it goes to court the lawyers will inherit a huge chunk of the estate. How valuable is the estate?

One final thought - how come sister knows about the £30k ?

RAS

You are mixing up several things.

In order to sign the LPA and the will, your mother had to be of sound mind at the time. Ditto for her to sign the cheque.

Whilst she remained of sound mind, you could use the power of attorney with her consent.

Only once she lost the capacity to make her own decision were you required to register the LPA.

It appears therefore that you have effectively declared that your mother had lost the capacity to make her own decisions (by registering the LPA) on the same day as you have declared that she was of sound mind (able to sign the will, LPA and cheque). At least that may be how your sister see it.

And even August 2012 - February 2013 is not a long gap.

The fact that you sister is contesting the will means that you face substantial court costs. Courts will expect you to try to mediate and one of the normal things that happens is that both parties make offers before the case actually goes to court.

If your sister is awarded more than your final offer, you have to pay her legal bills and your own. If she is awarded less, she pays both sets of legal fees.

So your solicitior may be thinking it is better to offer something and avoid a lot of court costs.

John_Pierpoint

Surely this "new" LPA system was to insure that the paperwork and the agreements had been done in advance and checked by a government appointed bunch of bureaucrats (paid by the donor) so that the 0.1% of crooks, who were subverting the old cheap simple Enduring Power of Attorney, would be put out of business, by the two stage process.



https://forums.moneysavingexpert.com/discussion/4611063

karenh1962

sorry I think I have confused things, the LPA was applied for through the solicitor at the same time of the will but it was only to come into force when mum could no longer handle her affairs which was Feb 2013, that's when it was registered. Its under the threshold inheritance tax even if the £30k was added in. My sister saw a bank statement of mums showing the amount and the cheque stub! She must of been rooting round. TBH I would prefer to sort something out, I don't think my nerves could stand a court case which no doubt take a few years. But I am not sure what amount of money she would be happy with. Mum left her cash and house to me in the will with a letter to my sister explaining why she was not getting anything. My sister caused mum lots of grief and was really nasty to her, she walked out over 10 years ago and would have nothing to do with her. she was on the drink and drugs but I think she is off them now. the cash amounts to around £60k and the house £140k. I don't want to offer a big amount at first as whatever I do offer she will reject, to be honest a 60/40 split in my favour would be the most I would be happy at settling with.

getmore4less

John_Pierpoint wrote: »

Under this "new" LPA system, as I remember it (*), the family should have/can have a representative that has the responsibility to keep the family in the picture. Are you performing both roles? Was the sister correctly informed about what was happening? Did she object at the time?

There is a masive loop hole in the sytem, I will see if I can find the post(on the fool) that describes it.

back later.....

edit:
OK can't find the post but I think it was along the lines of.

The "to be told" can be the Solicitor AND they can be the certificate provider.

that way the person their attorney and the solicitor are the only ones that need to know.

troubleinparadise

Dear Karenh,

I'm not sure if you've read back through posts on this board, but this thread has some similarities to your situation re a caveat, and the ongoing procedures:

https://forums.moneysavingexpert.com/discussion/4611063

Does the solicitor suggest what sum of money would stop the continuation of your sister's action?

Whilst it may be galling to have to "give in", especially in the face of your mother's own choices and written explanation, for your peace of mind in the long run it may be the easier path. It is not something that sits happily in your heart, but may ease your stresses.

karenh1962

Thanks troubleinparadise, wow interesting reading. Solicitor did mention to offer half of house but no monies. Knowing my sister she would want money NOW! No offer yet though until we gather all witness statements, and not go in with half the house as the first offer but be prepared to go to half.

Errata

Both the solictor and the doctor assessed your mum as having capacity to make the LPA, will and give you £30k at the time these things happened.
Your sister has no evidence that your mum didn't have capacity and was unduly influenced as she hadn't clapped eyes on mum for ten years.
Find yourself a Rotweiller solicitor.