Will not updated; partial intestacy?

toast89

I know it sounds in bad taste to talk about this, but I'd like some advice or if anyone here has experienced something similar.

My parents and I are caring for my aunt who has dementia, full time. We have a copy of her Will for safe keeping. It details, after various charitable donations, that the rest/residue is to be 25% to my dad 'absolutely', 25% to my uncle 'absolutely' and 50% to several named others 'in equal shares absolutely'. Dad is the executor and trustee and is also currently waiting for PoA to come through. 

The Will hasn’t been updated since my uncle’s death several years ago, and he was childless, so we understand his 25% has lapsed and will fall into the residue. I was curious to see how this is worked out, if it would be split 12.5% each, to dad and the other 50%, but it seems that this matter could be a case of 'partial intestacy'.

Is this a complicated matter? Is there anything that we can do about this? I've read about statutory wills, which can be used to update wills when the testator is no longer mentally capable of making these changes. Does anyone have any experience of this? We could ask the solicitor, but I feel this might look bad. I just would like everything to be in order if possible. We're in Northern Ireland btw, I know the law can vary for each part of the UK.

*edited*

Sea_Shell

As a guestimate, do you know how much the charitable donations are as a percentage of the total estate?

Is there any risk of there not being any residual estate left, after they are made?

toast89

Sea_Shell said:

As a guestimate, do you know how much the charitable donations are as a percentage of the total estate?

Is there any risk of there not being any residual estate left, after they are made?

Thank you for replying! I'm guessing it'd be around 10% of the total estate, maybe less. I don't think there's a risk of there being no residual estate left after.

Sea_Shell

Who's paying for the respite care.  Council or self funded?

Is there a chance this could become permanent?   

Care fees could eat up the 90% residual estate.   How quickly would depend on the size of the estate.

xylophone

https://www.gov.uk/hmrc-internal-manuals/inheritance-tax-manual/ihtm12178

https://www.legislation.gov.uk/apni/1955/24

https://www.legislation.gov.uk/nisi/1994/1899/made

https://www.mylawyer.co.uk/losing-a-gift-in-a-will-a-A76045D77068/

I truly believe she would have changed it for dad to receive 50% if she were well. 

I don't think that your belief will affect the legal position.

It seems to me that your father should consult the solicitor so as to be sure of how he should act when the time comes.

Keep_pedalling

If the will has no clause otherwise then the failed inheritance will fall to the remaining residual beneficiaries, so your father will receive an additional 12.5% and the other share the other 12.5%.

Caring for someone with dementia is hard work, and as you have found can be severely detrimental to both the physical and mental health of the career. Please don’t let him put an inheritance ahead of his health. It sounds like she is at the stage where residential care is going to be better for all concerned, so he should think very carefully about taking on this burden again.

naedanger

toast89 said:

I know it sounds in bad taste to talk about this, but I'd like some advice or if anyone here has experienced something similar.

My parents and I are caring for my aunt who has dementia, full time. We have a copy of her Will for safe keeping. It details, after various charitable donations, that the rest/residue is to be 25% to my dad 'absolutely', 25% to my uncle 'absolutely' and 50% to several named others 'in equal shares absolutely'. Dad is the executor and trustee and is also currently waiting for PoA to come through. 

The Will hasn’t been updated since my uncle’s death several years ago, and he was childless, so we understand his 25% has lapsed and will fall into the residue. I was curious to see how this is worked out, if it would be split 12.5% each, to dad and the other 50%, but it seems that this matter could be a case of 'partial intestacy'.

Is this a complicated matter? Is there anything that we can do about this? I've read about statutory wills, which can be used to update wills when the testator is no longer mentally capable of making these changes. Does anyone have any experience of this? We could ask the solicitor, but I feel this might look bad. I just would like everything to be in order if possible. We're in Northern Ireland btw, I know the law can vary for each part of the UK.

I wholeheartedly feel my dad deserves this additional 25%. My parents do absolutely everything with no other family support. The solicitor, a distant family member, also knows this. My dad, almost 70 years old, moved in with my aunt for almost a year to look after her full-time to the detriment of his own health; things got very bad the past few weeks with my aunt, where she is now in a care home for a few weeks for respite. Dad then ended up in hospital with a bad chest infection as a result of the stress he had been experiencing. Thankfully he's on the mend now. The named people in the 50% (my cousins from two other aunts who passed away) haven't so much as even lifted the phone, they never even look the length of my poor aunt, even when she was well, they never bothered with her. She has previously expressed resentment at this and I truly believe she would have changed it for dad to receive 50% if she were well. 

You should definitely speak to the solicitor. I don't see anything in bad taste and even if the solicitor does (which seems unlikely) they will give you the professional advice you need. 

naedanger

Keep_pedalling said:

If the will has no clause otherwise then the failed inheritance will fall to the remaining residual beneficiaries, so your father will receive an additional 12.5% and the other share the other 12.5%.

Caring for someone with dementia is hard work, and as you have found can be severely detrimental to both the physical and mental health of the career. Please don’t let him put an inheritance ahead of his health. It sounds like she is at the stage where residential care is going to be better for all concerned, so he should think very carefully about taking on this burden again.

Have you got an arithmetic error in that? The father was getting a quarter of the residual estate, the uncle a quarter and half was going elsewhere. So the father would get a 1/3rd (not 1/2) the uncle's share?

toast89

Sea_Shell said:

Who's paying for the respite care.  Council or self funded?

Is there a chance this could become permanent?   

Care fees could eat up the 90% residual estate.   How quickly would depend on the size of the estate.

The respite care is mostly paid for by the trust, and we pay part of it. It is likely to become permanent as she needs 24 hour care and we are no longer able to provide this. She has a sizeable estate but as you say, care fees are very expensive.

xylophone said:

I truly believe she would have changed it for dad to receive 50% if she were well. 

I don't think that your belief will affect the legal position.

It seems to me that your father should consult the solicitor so as to be sure of how he should act when the time comes.

Thank you for the reply and helpful links! Oh and I know, it wouldn't be changed on my say-so. I was just ranting a little! 😅

Keep_pedalling said:

If the will has no clause otherwise then the failed inheritance will fall to the remaining residual beneficiaries, so your father will receive an additional 12.5% and the other share the other 12.5%.

Caring for someone with dementia is hard work, and as you have found can be severely detrimental to both the physical and mental health of the career. Please don’t let him put an inheritance ahead of his health. It sounds like she is at the stage where residential care is going to be better for all concerned, so he should think very carefully about taking on this burden again.

Thank you for your reply! This is what I thought too, a 12.5% split each way, but then someone had said it wouldn't be that way and that it would be a partial intestacy which got me more confused. Surely a 12.5% split is the most logical way. Someone else even said that dad would still have 25% while the others got 75%. I don't understand that; so I hope we are right in our thinking!

And absolutely, dad is not fit to go back to that. She needs 24 hour care and it's just not feasible. He's not even thinking about the inheritance, he just wants to be back at home again with my mum, it was all so stressful for him. It's all very sad but she seems to be settled in the care home - she wasn't settled in her own home at all, very distressed and wanted to "go home" despite being in her own home. So this could be for the best. We're still waiting on PoA to come through, which hopefully it does soon, as this is needed to arrange for a care home.

naedanger said:

toast89 said:

I know it sounds in bad taste to talk about this, but I'd like some advice or if anyone here has experienced something similar.

My parents and I are caring for my aunt who has dementia, full time. We have a copy of her Will for safe keeping. It details, after various charitable donations, that the rest/residue is to be 25% to my dad 'absolutely', 25% to my uncle 'absolutely' and 50% to several named others 'in equal shares absolutely'. Dad is the executor and trustee and is also currently waiting for PoA to come through. 

The Will hasn’t been updated since my uncle’s death several years ago, and he was childless, so we understand his 25% has lapsed and will fall into the residue. I was curious to see how this is worked out, if it would be split 12.5% each, to dad and the other 50%, but it seems that this matter could be a case of 'partial intestacy'.

Is this a complicated matter? Is there anything that we can do about this? I've read about statutory wills, which can be used to update wills when the testator is no longer mentally capable of making these changes. Does anyone have any experience of this? We could ask the solicitor, but I feel this might look bad. I just would like everything to be in order if possible. We're in Northern Ireland btw, I know the law can vary for each part of the UK.

I wholeheartedly feel my dad deserves this additional 25%. My parents do absolutely everything with no other family support. The solicitor, a distant family member, also knows this. My dad, almost 70 years old, moved in with my aunt for almost a year to look after her full-time to the detriment of his own health; things got very bad the past few weeks with my aunt, where she is now in a care home for a few weeks for respite. Dad then ended up in hospital with a bad chest infection as a result of the stress he had been experiencing. Thankfully he's on the mend now. The named people in the 50% (my cousins from two other aunts who passed away) haven't so much as even lifted the phone, they never even look the length of my poor aunt, even when she was well, they never bothered with her. She has previously expressed resentment at this and I truly believe she would have changed it for dad to receive 50% if she were well. 

You should definitely speak to the solicitor. I don't see anything in bad taste and even if the solicitor does (which seems unlikely) they will give you the professional advice you need. 

Thank you so much, you're right. I think it's because the solicitor is a distant family member that I felt a bit uncomfortable about it.

toast89

naedanger said:

Keep_pedalling said:

If the will has no clause otherwise then the failed inheritance will fall to the remaining residual beneficiaries, so your father will receive an additional 12.5% and the other share the other 12.5%.

Caring for someone with dementia is hard work, and as you have found can be severely detrimental to both the physical and mental health of the career. Please don’t let him put an inheritance ahead of his health. It sounds like she is at the stage where residential care is going to be better for all concerned, so he should think very carefully about taking on this burden again.

Have you got an arithmetic error in that? The father was getting a quarter of the residual estate, the uncle a quarter and half was going elsewhere. So the father would get a 1/3rd (not 1/2) the uncle's share?

Sorry just seeing this post. Ahh see this is where I'm getting confused! So in this case it could be a 33% and 66% split?

naedanger

toast89 said:

naedanger said:

Keep_pedalling said:

If the will has no clause otherwise then the failed inheritance will fall to the remaining residual beneficiaries, so your father will receive an additional 12.5% and the other share the other 12.5%.

Caring for someone with dementia is hard work, and as you have found can be severely detrimental to both the physical and mental health of the career. Please don’t let him put an inheritance ahead of his health. It sounds like she is at the stage where residential care is going to be better for all concerned, so he should think very carefully about taking on this burden again.

Have you got an arithmetic error in that? The father was getting a quarter of the residual estate, the uncle a quarter and half was going elsewhere. So the father would get a 1/3rd (not 1/2) the uncle's share?

Sorry just seeing this post. Ahh see this is where I'm getting confused! So in this case it could be a 33% and 66% split?

Yes, I would expect the failed share to be treated as though it didn't exist, so the remaining residual beneficiaries' relative shares remain the same. (That said I don't know this for a fact or anything else about the situation where a childless family member predeceases the testator in Northern Ireland.)