Including beneficiary with mental health difficulties in a will

planningahead

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I live in Scotland. Inheritance tax will not be an issue.

My husband and I have mirror wills, leaving everything to each other and then equally to our three adult children should we die together. Two of our children are named as executors. The third one has serious mental health and occasional substance abuse difficulties.

Unfortunately it has become increasingly apparent that his mental health difficulties are not going to improve and we are concerned about the effect simply being given a (relatively) large amount of money would have. Not only would it be completely wasted, more importantly it would be very likely to cause him harm because of the ways in which he would spend it.

We will see a solicitor to re-do our wills to try to accommodate our son's difficulties, but it would be helpful to hear views from here first. I am happy to answer any questions if I have missed out any necessary information.

Thank you.

g6jns_2

planningahead wrote: »

This may not be the correct board for this question. Please move it if a different board is more appropriate.

I live in Scotland. Inheritance tax will not be an issue.

My husband and I have mirror wills, leaving everything to each other and then equally to our three adult children should we die together. Two of our children are named as executors. The third one has serious mental health and occasional substance abuse difficulties.

Unfortunately it has become increasingly apparent that his mental health difficulties are not going to improve and we are concerned about the effect simply being given a (relatively) large amount of money would have. Not only would it be completely wasted, more importantly it would be very likely to cause him harm because of the ways in which he would spend it.

We will see a solicitor to re-do our wills to try to accommodate our son's difficulties, but it would be helpful to hear views from here first. I am happy to answer any questions if I have missed out any necessary information.

Thank you.

You need to consider a trust for him. I am not sure how, or even if, you do this in Scotland. That is why you need a solicitor. You cannot rely on advice from here.

planningahead

g6jns wrote: »

You need to consider a trust for him. I am not sure how, or even if, you do this in Scotland. That is why you need a solicitor. You cannot rely on advice from here.

Thanks. We intend to see a solicitor and assumed that a trust would probably be necessary. I don't intend to rely on advice from here but would find it helpful so I have a better understanding of things and am aware of all the options before seeing the solicitor.

Mattygroves2

You will need to work out who you trust to be the Trustees for your child and also what constraints you may want to put on their behaviour. As you are in Scotland you can't leave him out so it's good that you are thinking about it now.

planningahead

Mattygroves2 wrote: »

You will need to work out who you trust to be the Trustees for your child and also what constraints you may want to put on their behaviour. As you are in Scotland you can't leave him out so it's good that you are thinking about it now.

Thanks. We wouldn't want to leave him out. His life is hard enough without having to come to terms with the rejection that would be.

Choosing Trustees will be a problem. We don't want to land our other children with having to see to him - he can be very difficult indeed and any contact they choose to have is a bonus. Giving them the responsibility of looking after his money would make that all the more difficult. I imagine that having a solicitor as Trustee would be very expensive.

pmlindyloo

A useful link:

https://www.rethink.org/carers-family-friends/what-you-need-to-know/wills-and-trusts

planningahead

pmlindyloo wrote: »

A useful link:

Thanks. That's worth looking at. Even though it's not Scotland, the issues are the same and we're likely to have something similar.

(I've had to remove your link as I'm currently a new user.)

jackyann

I would contact one of the major charities that deal with your son's problems: whether you choose a mental health one like MIND or one of the substance abuse ones, I don't really know what is available in Scotland.

They have advisors, and sometimes have legal contacts who understand these issues and can advise you about specifics you need to consider. Of course a Trust will help him not to have access to too much money, but if he is reliant on benefits of some kind (as many people with moderate to severe mental health problems are) then you need careful planning by people who understand the system.

planningahead

jackyann wrote: »

I would contact one of the major charities that deal with your son's problems: whether you choose a mental health one like MIND or one of the substance abuse ones, I don't really know what is available in Scotland.

They have advisors, and sometimes have legal contacts who understand these issues and can advise you about specifics you need to consider. Of course a Trust will help him not to have access to too much money, but if he is reliant on benefits of some kind (as many people with moderate to severe mental health problems are) then you need careful planning by people who understand the system.

That's a good idea. The substance abuse is less of an issue, mainly an attempt to self-medicate, though it comes in waves. Benefit repercussions would be a consideration - he's currently unemployable - even though I feel uncomfortable about them being so.

Thank you. I knew it would be worth asking.

TBagpuss

One option may be to have your other children (or one of them) plus a solicitor, as trustees. This could allow for the lay trustees to do most of what might be needed, but would mean that they have the backing of a professional (and can use them as a scapegoat if they have to) if they need it. Discuss it in detail with the solicitor.

I am not familiar with Scottish Law, but a discretionary trust with other beneficiaries (such as hi siblings, any children he may have, or his nieces and nephews) might limit both his ability to have the trust ended, and any benefits implications.

Depending on how his mental health issues present themselves, and how much this varies, would there be any possibility of discussing it with him, when he is well?

BobQ

OP, I agree with Tbagpuss. You probably need to set up a discretionary trust.

Unless you have reason not to trust his siblings asking them to be trustees is a plausible option with a professional as a fall back. Is there anyone else that you might trust with this responsibility?

Remember that while you can probably rely on a reputable solicitor's firm to be trustees this could be expensive. They will probably want two solicitors to act and they will charge significant fees to carry out the duties which will eat into the capital/income. Those duties will in part depend on the instructions you lay down for the trust and how it is to be invested.

You also need to think about what you want to happen to the trust if he were to die. The trust also has to have a situation when it is dissolved..