Will or Gift ?

DevilsAdvocate1

My mum died recently and she wanted everything to be left to me, her only child.  She told me that the way they held the house meant that she could gift her half to me rather than it automatically go to my dad on her death.

Anyway, mum and dad did their own wills without involving a solicitor.  Dad thinks the will is probably not valid.  He has suggested that he gifts half the house to me and transfers her money into my account and has asked if I'm okay with this.  The obvious pitfall would be if he died within 7 years as I'd then have to pay tax on the gift.  Is there anything else I need to be aware or?  Dad is 82 and is in much better health than mam was at 82.  She was 91 when she died.  I'm hoping dad lives to 100 as I want to see a telegram from the king !!!

Dad is also worried, because he now realises that he spelt mum's middle name incorrectly on her death certificate.  Her name had two spellings - I told him I thought it was wrong, but he was so confident that his spelling was the right one.  It was only after the death certificate arrived that he compated it with her birth certificate and realised that he spelt it incorrectly.  I think he's really worried about this.

I don't think my dad has any intention of trying to stop me from receiving mum's assets, I think he's worried about the home made wills and that he spelt mum's middle name incorrectly.

Gold_Shogun

The mis-spelling of your mum's name will definitely NOT have ANY negative effect on the validity of the Will or Death Certificate.

Is that mis-spelling the only reason your Dad thinks your Mum's Will MAY be invalid ? ..... If so, you can put his mind at ease.

In the absence of some other "genuine legal reason" which invalidates your Mum's Will, it would be wisest to follow the path of your Mum's Will as you outlined.
..... No matter how "good" your Dad may be now @ 82, it's impossible to know that he will last the next 7 years needed for a Potentially Exempt Transfer to go full-term. ..... Furthermore, any such "GIFT" path like your Dad suggests could easily come back & bite you/him later as potential "Deprivation of Assets" if your Dad needs Home-Care OR go into a Care-Home in future years.

... My Dad (nicknamed Lazarus by his doctor) is currently 94 and has died (and luckily been resucitated) three times in the last 10 years.

Sea_Shell

DevilsAdvocate1 said:

She told me that the way they held the house meant that she could gift her half to me rather than it automatically go to my dad on her death.

Are you sure that the house was owned as Tenants in Common, and NOT Joint Tenants.   Have you seen a copy of the deeds?

These can be downloaded from land registry, I believe, for a small sum (£3?)

Keep_pedalling

This is a good example of why the regulars on this board always tell people not to DIY your wills. If your parents failed to split the tenancy at the same time then it can’t be left in a will. 

The correct way to do this would have been to hold the house as tenants in common and provide the survivor with a life interest in the share left to you. The life interest protects the survivor’s security and avoids the possibility of you ending up with a capital gains liability when the house is eventually sold.

As for IHT, that is only an issue if your parents have joint assets exceeding £1M, and if gifting half the house, the 7 year rule would not apply as your father would still be living in it so it would be classified as a gift with reservation.

You should now take professional advice on the will and any problems with it. Your parents attempt to save a few hundred quid may now end up costing you a lot more in legal fees to sort out what could potentially be a bit of a financial mess. Does the will appoint you as the executor?

DevilsAdvocate1

Thanks for all your replies. I spent today with dad.  He has found 2 wills - one from 1990 and one from 2015.  They both say similar - everything to go to me, but the earlier one was done by a solicitor and the later one was done by them.  The one done by the solicitor is more clear and dad's position regarding the house is more protected - ie.  it states he has a overriding interest in the house until he dies - basically I can't sell it from under him.

The reson they wrote their own subsequent will was because I got married and they were worried that if anything happened to me then my share would go to my husband.  If he also died, they were worried that someone unknown to them, such as my husband's brother could inherit it and they wanted anything to go to my children if I died first.

Dad has suggested that we follow the will created by a solicitor and I'm inclined to agree with this.  The solicitor who drew it up is now retired, but dad is going to make an appointment with another one so we can get proper legal advice.

Thanks for all your help.

Keep_pedalling

DevilsAdvocate1 said:

Thanks for all your replies. I spent today with dad.  He has found 2 wills - one from 1990 and one from 2015.  They both say similar - everything to go to me, but the earlier one was done by a solicitor and the later one was done by them.  The one done by the solicitor is more clear and dad's position regarding the house is more protected - ie.  it states he has a overriding interest in the house until he dies - basically I can't sell it from under him.

The reson they wrote their own subsequent will was because I got married and they were worried that if anything happened to me then my share would go to my husband.  If he also died, they were worried that someone unknown to them, such as my husband's brother could inherit it and they wanted anything to go to my children if I died first.

Dad has suggested that we follow the will created by a solicitor and I'm inclined to agree with this.  The solicitor who drew it up is now retired, but dad is going to make an appointment with another one so we can get proper legal advice.

Thanks for all your help.

Unless the second will is for some reason invalid, it revokes the earlier one you don’t get to choose which one to use. A deed of variation will probably be required to to sort this out.

doodling

Hi,

Are there any other beneficiaries other than you and your Dad?  You mention your children - do they receive anything or is that only in the event of your death?

I think that a solicitor will advise that the most recent (2015) will should be followed, assuming that it is a valid will, but if there are no other beneficiaries due to benefit then I think you and your Dad can agree to vary the new will such that it matches the old (1990) one (or to anything else you want).

74jax

DevilsAdvocate1 said:

Thanks for all your replies. I spent today with dad.  He has found 2 wills - one from 1990 and one from 2015.  They both say similar - everything to go to me, but the earlier one was done by a solicitor and the later one was done by them.  The one done by the solicitor is more clear and dad's position regarding the house is more protected - ie.  it states he has a overriding interest in the house until he dies - basically I can't sell it from under him.

The reson they wrote their own subsequent will was because I got married and they were worried that if anything happened to me then my share would go to my husband.  If he also died, they were worried that someone unknown to them, such as my husband's brother could inherit it and they wanted anything to go to my children if I died first.

Dad has suggested that we follow the will created by a solicitor and I'm inclined to agree with this.  The solicitor who drew it up is now retired, but dad is going to make an appointment with another one so we can get proper legal advice.

Thanks for all your help.

Unfortunately your dad still doesn't understand why solicitors draw up wills.  Your dad doesn't get to say 'let's just forget about a Will'. 
Take him to a solicitors and have it done right. For his peace of mind and to make it easier for you.

Imagine if something did happen and the witnesses of the 2nd will came forward (for whatever reason).... Honestly, just have a new will drawn up revoking the home made will. 

DevilsAdvocate1

74jax said:

DevilsAdvocate1 said:

Thanks for all your replies. I spent today with dad.  He has found 2 wills - one from 1990 and one from 2015.  They both say similar - everything to go to me, but the earlier one was done by a solicitor and the later one was done by them.  The one done by the solicitor is more clear and dad's position regarding the house is more protected - ie.  it states he has a overriding interest in the house until he dies - basically I can't sell it from under him.

The reson they wrote their own subsequent will was because I got married and they were worried that if anything happened to me then my share would go to my husband.  If he also died, they were worried that someone unknown to them, such as my husband's brother could inherit it and they wanted anything to go to my children if I died first.

Dad has suggested that we follow the will created by a solicitor and I'm inclined to agree with this.  The solicitor who drew it up is now retired, but dad is going to make an appointment with another one so we can get proper legal advice.

Thanks for all your help.

Unfortunately your dad still doesn't understand why solicitors draw up wills.  Your dad doesn't get to say 'let's just forget about a Will'. 
Take him to a solicitors and have it done right. For his peace of mind and to make it easier for you.

Imagine if something did happen and the witnesses of the 2nd will came forward (for whatever reason).... Honestly, just have a new will drawn up revoking the home made will. 

Thanks, everyone.   What a mess.

We can't really have a new will drawn up as mum is now dead.  I am the only beneficiary in both wills.  The only difference is that the second will named what should happen if I died before my mum - which obviously I haven't.

I think dad is worried because he drew up the second will and looking at the date its around the time my mum was diagnosed with alzeimers.  I don't think this will would be legal as its clearly all in his handwriting, complete with spelling mistakes.  Mum would never have made some of the mistakes -  he even spells my name wrong at one point.  Mum has signed it though, but I'm not sure she would have been classed as competent.  We had power attorney drawn up well before this, when she first started showing issues.

I think he's panicked about what would happen should I die along with my kids in an accident.  Thought my husband's siblings could end up owning mum's share and subsequently make him homeless.  So he's written out this new one and got mum to sign it.  He's now thinking he could be trouble for changing the will and I think this is why he is suggesting he gives everything to me via a gift rather than through the will.

The witnesses are no longer with us.

DevilsAdvocate1

doodling said:

Hi,

Are there any other beneficiaries other than you and your Dad?  You mention your children - do they receive anything or is that only in the event of your death?

I think that a solicitor will advise that the most recent (2015) will should be followed, assuming that it is a valid will, but if there are no other beneficiaries due to benefit then I think you and your Dad can agree to vary the new will such that it matches the old (1990) one (or to anything else you want).

Thanks.  There's nothing different really other than the one they did themselves  covers what should happen if I died before my mum.  From the solicitor's will my husband would have inherited should I have died, whereas their will placed the assets with my children if I had died.  Mum was already housebound when this second will was done, so I'm presuming that's why it wasn't done properly and its likely mum wouldn't have been classed as competent.  Think my dad was trying to protect his situation.

TBagpuss

OK, the basic requirements for a valid will are that it is;

(i) In writing
(ii) Signed by the testator in the presence of wo witnesses 
(iii) signed by 2 witnesses in the presence of the testator and of each other. 


So, being handwritten, and having spelling errors don't either of them mean the will isn't valid. Even your name being wrong isn't a problem as long as it clear who is meant. (e.g. If it says "My daughter Liz " when your real name is actually Elizabeth, or "My daughter Catherin" when your name is actually Kathryn, is still valid, it would only be if  it's unclear - e.g. "my daughter" where she had more than one, or "Jane" where she had both a daughter and a sister with that name and it wasn't clear which. 

If his concern is that t was after she Alzheimer's then that's a separate issue. If she lacked mental capacity then the will would not be valid and the older one would stand. However, Capacity is often fluid - people with dementia may have capacity intermittently.
and the test is about whether she understood what she was signing and its broad effects - i.e. she knew it was a will and what that means, she understood what assets she had and who she was giving them to, and was aware of who there was who she would reasonably and 'morally' be expected to consider. 



Presumably at the time, your dad was confident that Mum did have capacity 

What (other than the spelling errors) are the difference between the two wills? Is there anyone who would inherit under the earlier one but not the later one? 

However, if your dad would inherit under the newer will, the obvious way forward would be a deed of variation to, in effect, revert to the older terms. That would then mean that for tax purposes , it's no different that if you mum had made a will in those terms - effectively it's equivalent to amending the will.

So for as the spelling error on the death certificate it's not the end of the world.  If she actually used more than one spelling (e.g if on her birth certificate it is one spelling but on some of her bank accounts the other, for example, then you can in the application for probate deal with this e.g. by referring to (say) Mary Katherine Smith (also known as Mary Catherine Smith)

However, if she was always known as Mary Catherine and your dad just mispelled it, then this can be corrected by getting a note added to the death certificate and register  -  a mis-spelled name is actually one of the examples given on the governments website  https://www.gov.uk/correcting-a-death-registration - you would then use a copy of the ccorrected certificate for probate etc.