Challenging a Will

Alibert

Mojisola wrote: »

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.

but that might well attract the attention of the LA, and if your POA is used to do it, others as well

Mojisola

Alibert wrote: »

but that might well attract the attention of the LA, and if your POA is used to do it, others as well

The POA isn’t relevant - nothing is being done to TT’s wife’s money - only his.

kinger101

Mojisola wrote: »

The POA isn!!!8217;t relevant - nothing is being done to TT!!!8217;s wife!!!8217;s money - only his.

Husband's no. But the POA of children might be. They're supposed to act in the best interest of the wife. It could be the wife would have a claim to the estate under the Inheritance Act.

System

kinger101 wrote: »

Husband's no. But the POA of children might be. They're supposed to act in the best interest of the wife. It could be the wife would have a claim to the estate under the Inheritance Act.

The solution is to cover all these complications in the POA itself.
As I discovered recently, you can specify in the POA any particular actions or payments that you want your attorneys to make.


For example, I wanted to allow my attorneys to make substantial gifts to our children for help with house purchases. I discussed this with an adviser at the OPG and discovered such action is permissable even if on the face of it not of benefit to the POA beneficiary. But you can explain in the POA exactly what circumstances you wish to cover, and the attorneys agree to this when they sign consent to become attorneys.
I was told a key point is to add wording something like "subject always to the availability of sufficient resources to provide adequately for the beneficiary" - so you can't go on with even a pre-approved action if the money has run out.


If you have more complicated POA requirements than the basic one you really need to talk to the OPG and get their advice and agreement.

Alibert

There was a suggestion above that the OP might change the ownership of the house from joint tenants to tenants in common.

That would have to be done using the POA

I think someone using a POA to transfer assets to himself would ring alarm bells wouldn't it ?

Mojisola

kinger101 wrote: »

Husband's no. But the POA of children might be. They're supposed to act in the best interest of the wife. It could be the wife would have a claim to the estate under the Inheritance Act.

Having POA for their mother doesn't give them the power to stop their father changing his will. He could do it without their knowledge if he wanted to.

It sounds as if her assets will be enough to pay for 5+ years of care so she's not being left destitute. Realistically, with advanced dementia and the changes to her life that the death of her husband and main carer will bring about, that will probably be plenty.

If TT does change his will and his children don't feel it's right, they will be able to do a DOV and give their inheritance to their mother (as long as they aren't receiving means tested benefits) or to inherit and ringfence the money in case she needs it in the future.

There won't be any need for an expensive legal challenge to the will.

Mojisola

Alibert wrote: »

There was a suggestion above that the OP might change the ownership of the house from joint tenants to tenants in common.

That would have to be done using the POA

I think someone using a POA to transfer assets to himself would ring alarm bells wouldn't it ?

Severing a joint tenancy isn't transferring assets from one person to another - the mother's POA doesn't have to be used.

Either owner can sever a joint tenancy - it doesn't need the agreement of the other party because they don't lose anything - the property had two owners and it still has two owners.

Marcon

Mojisola wrote: »

Severing a joint tenancy isn't transferring assets from one person to another - the mother's POA doesn't have to be used.

Either owner can sever a joint tenancy - it doesn't need the agreement of the other party because they don't lose anything - the property had two owners and it still has two owners.

Here's the step by step guide: https://www.gov.uk/joint-property-ownership/change-from-joint-tenants-to-tenants-in-common

Terry_Towelling

Just to clear things up a little. The house is owned 50:50 and I have no intention of changing that. I've never said what my wife's Will includes - but some of my desires here are to try and make some of her wishes possible without everything going on care home costs. Our other cash-based assets are all independently owned and my wife holds considerably more than I do. Her pension incomes and assets (down to the last £23.5K) will definitely ensure she has years of care funded by her own means. I have no intention of dying any time soon but something has happened that increases that likelihood. I know the issue is contentious but if I can engineer a situation whereby she would be properly cared for until she dies without all of our assets being sucked away then I will. Yes, there are people who think I'm wrong expecting the tax-payer to subsidise care but if they were in the same position and thought they could provide good care and, at the same time, preserve some inheritance for the children, I'm sure they'd think twice before saying, 'No, I'd rather spend the lot on care and when that's gone then I'll leave her to the cheapest the LA can fund and the children can go hang' regardless of the fact that the her Will clearly expresses a wish to leave them something. The children have already said they don't want or expect anything but I will still do my best. Everything is up in the air, no one knows who will die and when, or how much will be spent along the way but I will do my best to protect her and (indirectly) the value of her assets via mine until the end. Regardless of what I do (or don't do) the most likely scenario is still that she will die here at home before I do and, despite the fact that I never want to be without her, I will pray that that is exactly what will happen.