Challenging a Will

Terry_Towelling

I have submitted this thread on another part of the forum but wanted to post it here too just in case anyone might have come across anything like it in their retirement planning.

My most recent Will (2002) passes everything to my wife in the event I predecease her. She is 20 years my senior, so it never really crossed our minds that I would pass first. Anyway, things do tend to come out of the blue and seems there is now a chance I may go first.

Doesn't sound that strange except that she has fairly well-advanced dementia (diagnosed 2009) and I care for her at home. Should I die first, it will be impossible for any of our children to look after her at home and she will have to go into care. The house would all be hers then as would all my other assets. These would have to be liquidated to pay for her care. Her total worth would then be around £500K which would just about pay for 10 years care (probably wouldn't be needed that long though)

Now, I can change my Will to pass everything to the children to prevent a lot of this from happening. Some might think that was an inappropriate thing to do and that she should fund her own care without burdening the tax-payer. Fair enough but let's park that argument for the moment.

I am aware that if someone cuts a spouse from their Will, that spouse will have the right to challenge the Will and receive at least as much as they would have been entitled to if the couple had instead divorced. Now, my wife won't be in a position to challenge anything but...

...does anyone know whether a Local Authority could challenge my Will on the basis that my actions in cutting my wife from my Will is an act of collusion designed to deliberately deprive her of assets she would have been legally entitled to and which could then have been used to paid for more of her care?

kidmugsy

Does she own half the house as a tenant-in-common? Or do you own it jointly?

Terry_Towelling

kidmugsy wrote: »

Does she own half the house as a tenant-in-common? Or do you own it jointly?

Now you're asking. I need to dig out the paperwork. I had this sorted by a solicitor some time ago so that we each own half the house independently but can't remember the precise terms.

Just to say (not to you, Kidmugsy, but because I have had some backlash to the duplicate thread in another part of the forum) that there is much more underlying my post than I have revealed here. In particular, if anyone wants to berate me for planning to abandon my wife to the cheapest home the LA will fund then they think again. Anyone with that thought will need to read the other thread in the 'family, funerals etc' forum - and then keep their thoughts to themselves.

I have had others in the other thread saying the LA cannot challenge my Will.

kidmugsy

Terry_Towelling wrote: »

Now you're asking. I need to dig out the paperwork. I had this sorted by a solicitor some time ago so that we each own half the house independently but can't remember the precise terms.

Yes, that's tenants in common. I don't know about the LA challenging your will but I (a layman) have never heard of this.

You may like to make sure that your children will have power of attorney for her, or if that's not possible because of the dementia, that they have the next best substitute.

You might like to get them to study the sort of annuity that your wife's money could buy once the house is sold: that may be a good way of funding her care, and it's tax-efficient.
https://www.moneyadviceservice.org.uk/en/articles/immediate-needs-annuity

What a rotten position for you all to find yourselves in. Chin up and keep !!!!!!ing on.

Dox

Given how much there is at stake, why are you relying on speculation from strangers? Go and see a solicitor (make sure they are a STEP member) and get some proper advice based on a full understanding of your position. It's clear from your post that you have a few fundamental misunderstandings and it would be money well spent - and save you some unkind comments from people who don't know the full picture.

LHW99

Also, if considering a financial adviser, make sure they are independent, and perhaps a member of SOLLA. They would be able to help with things like funding care in an efficient manner
https://societyoflaterlifeadvisers.co.uk/

I don't know abour challenging a will, but LA's do have considerable power to look at financial plans these days, and consider whether any actions could be deemed deliberate deprivation of assets.

badmemory

I was under the impression that a major reason for owning a house in this way was so that each partner could leave their share of the house to anyone. The LA would have no way of knowing what your previous will said. If you had changed ownership recently then that could well raise questions.

Terry_Towelling

Dox wrote: »

Given how much there is at stake, why are you relying on speculation from strangers? Go and see a solicitor (make sure they are a STEP member) and get some proper advice based on a full understanding of your position. It's clear from your post that you have a few fundamental misunderstandings and it would be money well spent - and save you some unkind comments from people who don't know the full picture.

Don't worry. My 'tame' solicitor is once again on holiday but, as this issue has rather suddenly reared its head, I thought I'd see if anyone on the forum had any idea - the wisdom of crowds and all that.

Terry_Towelling

kidmugsy wrote: »

Yes, that's tenants in common. I don't know about the LA challenging your will but I (a layman) have never heard of this.

You may like to make sure that your children will have power of attorney for her, or if that's not possible because of the dementia, that they have the next best substitute.

You might like to get them to study the sort of annuity that your wife's money could buy once the house is sold: that may be a good way of funding her care, and it's tax-efficient.
https://www.moneyadviceservice.org.uk/en/articles/immediate-needs-annuity

What a rotten position for you all to find yourselves in. Chin up and keep !!!!!!ing on.

Yes, a bit out of the blue but I'm not planning on going anywhere anytime soon - it's just that what has come up increases the likelihood of me predeceasing my wife.

As for unkind comments (Dox post refers) I expected some (and I got them - anything else would have been a disappointment) but some showed how careful you have to be when you write things down because some readers don't read everything and simply extract bits from their context and spin them up in completely the wrong way.

Sometimes, mud-slingers should remember to keep their mouths shut to avoid having to swallow too much when it is thrown back at them.

kinger101

I don't think posting on a second forum is useful. I think you have to understand that you chose to post on what is a somewhat contentious issue, and it's bound to provoke some comments of which you don't approve. We've not walked in your shoes, but the gut reaction is why isn't everything being left to your wife - your only dependent.

Your problem is quite nuanced, and I think you really need to wait until you can speak to your solicitor (or one specializing in probate law). While the LA is unlikely to challenge a will, you are supposed to make adequate provision for your spouse, and her condition will no doubt be a consideration.

You say you and children are POA (on the other thread), but there's an obvious conflict of interest for any beneficiary of the will. So you'd also need to find out if a third party (relative) might be able to challenge the will on behalf of your wife if POA is breached.

You have my sympathies for managing to keep your wife out of care this long. Dementia is really challenging for carers too.

Mojisola

Terry_Towelling wrote: »

My most recent Will (2002) passes everything to my wife in the event I predecease her.

Terry_Towelling wrote: »

I had this sorted by a solicitor some time ago so that we each own half the house independently but can't remember the precise terms.

It's strange to own the house as 'tenants in common' if your wills leave everything to each other so double-check that - much easier to be 'joint tenants' if you want the survivor to have everything.

If you are joint tenants, it's very simple to sever the joint tenancy so that you can leave your share to someone other than your wife.