Is this will now defunct?

Justchecking4

Hello,

Fairly new to this site, but hoping for some advice. I'll try to keep this brief, so please excuse the bullet points.

Friend's mum died suddenly and unexpectedly. Her will states that her estate be split equally between 2 surviving sons & 1 eldest grandson.
Friend's dad has dementia; he was not named in the will (presumably as it was not expected that he would outlive his wife).
Friend's dad has not made a will.
Friend's parents had a joint bank account/jointly owned a property (both named on deeds).


As far as the family are all aware these 'assets' now solely belong to friend's dad, and supersede the original will made by friend's mum. Is this correct?

Also, friend's mum had her own personal account - where do these funds go?

What about the possessions? (e.g. car). This was driven under friend's mum's name (it may have been purchased with joint funds, or from her personal account).

Is the original will (e.g. friend's mum) now essentially defunct?

If the estate is passed onto friend's dad, does this mean that a will would need to be made in his name (in order to pass the estate on when the time comes). The Courts would presumably oversee this, would they expect to honour friend's mum's will? (e.g. the remaining estate would still be split equally between the same people). Friend's dad would no longer be able to make a reliable will due to his mental capacity.

Any help or suggestions would be most welcome.

Thanks.

Yorkshireman99

The crucial thing is how the property was held. It will either be as tenants in common or joint tenants. As the father has no will and is incapable of making one on his death the laws of intestacy will apply. The sole account funds form part of her estate. You need to check the insurance on the car but it forms part of her estate.

Linton

Jointly owned assets go to the surviving joint owner. Though the friend will need to check that the house was owned as "joint tenants" where they jointly owned all of it, rather than "tenants in common" whereby they each individually own part of the house, by default 50%.

Anything owned by Mum personally, such as a bank account in her name, is divided according to her will. Presumably the car registration document will state who the owner is. How it was purchased is irrelevent.

Once Mum's affairs are settled her all the joint assets come under Dad's will or under the rules of intestacy should he not have a will. I doubt but dont know for sure that a will can be made by someone else in his name. If he dies without a will then, if all the affected beneficiaries according to the intestacy rules agree, the estate can be split in any way they like under a "deed of variation".

nom_de_plume

The name on the registration document does not necessarily point to ownership. It is purely the name of the registered keeper. I bought my wife a car which I paid for from my own account but registered it into her name. On paper it would probably form a part of my estate although I would like to consider it a joint asset.

jackyann

I would get legal advice - possibly from someone like AgeUK /CAB or similar charity if money is an issue.

As I understand it, the will stands, but all the money in the joint account goes to the survivor, the house is as stated above. The car depends on what can be demonstrated from the purchase.

So the rest of mum's estate gets divided as she wished. Dad has:
the money in the joint account
either all or half the house (as above, though joint tenants is the most common for married couples, so most likely the whole house)
possibly the car / half the car

then when he dies, the laws of intestacy apply - you can check this on gov.uk, but effectively the 2 children you mentioned (not the grandson)

troubleinparadise

A person who does not have capacity cannot make a will, nor amend a current will; nor can an attorney on the donor's behalf make or amend a will. A person without a will would be viewed as having died intestate, and any assets would be dealt with accordingly.

konark

If the car was in the mother's name and the father had dementia and hopefully didn't drive it will be part of her estate.

The critical thing is the mode of ownership of the house.

securityguy

troubleinparadise wrote: »

A person who does not have capacity cannot make a will, nor amend a current will; nor can an attorney on the donor's behalf make or amend a will. A person without a will would be viewed as having died intestate, and any assets would be dealt with accordingly.

I realise you realise this, but to clarify for the OP: if someone has lost capacity and does not have a will, that is the end of it, and they will die intestate. There is nothing that anyone (court, Office of the Public Guardian, holder of enduring or lasting powers of attorney) can do to provide a will: the common misconception that someone with a power of attorney can do so is just that, a misconception. And "would they expect to honour friend's mum's will" doesn't enter into it: the assets will follow the laws of intestacy, full stop.

Edit to add: the court of protection can intervene, see posts below.

If the results of intestacy don't align with what the family think should happen, beneficiaries over eighteen can rearrange their share of the legacy using a deed of variation. However, you cannot deprive a minor of an inheritance, nor can they agree to be deprived, nor can a parent or guardian do so on their behalf, so if any of the beneficiaries under intestacy are under eighteen then they (or a trust on their behalf) get that part of the legacy come what may, and the adults can rearrange the remainder if they so wish.

jackyann

It just occurred to me - were mum & dad married? And was the will made after marriage?

Crabapple

You can apply to Court to make a Will for someone who does not have capacity.

https://www.gov.uk/apply-statutory-will/overview

It is a long, complex and expensive process and rarely worth all that effort.

Intestacy then a variation if everyone agrees is by far the best way to go.

Yorkshireman99

securityguy wrote: »

I realise you realise this, but to clarify for the OP: if someone has lost capacity and does not have a will, that is the end of it, and they will die intestate. There is nothing that anyone (court, Office of the Public Guardian, holder of enduring or lasting powers of attorney) can do to provide a will: the common misconception that someone with a power of attorney can do so is just that, a misconception. And "would they expect to honour friend's mum's will" doesn't enter into it: the assets will follow the laws of intestacy, full stop.

If the results of intestacy don't align with what the family think should happen, beneficiaries over eighteen can rearrange their share of the legacy using a deed of variation. However, you cannot deprive a minor of an inheritance, nor can they agree to be deprived, nor can a parent or guardian do so on their behalf, so if any of the beneficiaries under intestacy are under eighteen then they (or a trust on their behalf) get that part of the legacy come what may, and the adults can rearrange the remainder if they so wish.

Actually it can be done by the Court of Protection, but it is expensive and time consuming. Intestacy is usually a more satisfactory solution.