Friend's Will Has Expensive Unintended Consequence

mathsForFun

My friend made his will 20 years ago, he has unfortunately died, and I am the executor. He left a large amount of money to his girlfriend (who has no living relatives), who was in excellent health when the will was made, but is now in a care home with stage 6 Alzheimer's disease. Her money has been spent paying for her care, which is now being paid for by social services. If the money is given to her, all that will happen is that it will be used to pay for her ongoing care. Her life won't change in any way.

I know my friend wanted to avoid paying for care. A few years ago, he had discussed with me in detail how to minimise the amount of his own money that would go to pay for care if he ever needed it (unfortunately, he died before that question ever arose). I am stone cold certain that he would have seen paying for his girlfriend's care as a waste.
Is it possible for me to do something different than exactly what his will states knowing that it would absolutely not be what he would have wanted if he had known the outcome?

Daniel54

The simple answer is no.You have to execute the will as written.

macman

It is presumed that she does not have capacity to make a Deed of Variation, or perhaps someone has a PoA over her affairs if not?
If so, all the beneficiaries have to agree to the variation.
However, if she voluntarily surrenders her inheritance, then deprivation of assets would presumably apply?

Marcon

mathsForFun said:

My friend made his will 20 years ago, he has unfortunately died, and I am the executor. He left a large amount of money to his girlfriend (who has no living relatives), who was in excellent health when the will was made, but is now in a care home with stage 6 Alzheimer's disease. Her money has been spent paying for her care, which is now being paid for by social services. If the money is given to her, all that will happen is that it will be used to pay for her ongoing care. Her life won't change in any way.

Why would the taxpayer want to pick up the bill when the girlfriend's inheritance will go a long way towards footing the cost? Her life may not change in any way, but it could mean there's cash available to pay for someone else's care, be it at home or in a home.

Given that people at stage 6 can decline rapidly, the more immediate question could soon become what happens to any of her inheritance which is left unspent at the time she dies. Hopefully she has a will which was made while she still had capacity to do so?

mathsForFun said:

I know my friend wanted to avoid paying for care. A few years ago, he had discussed with me in detail how to minimise the amount of his own money that would go to pay for care if he ever needed it (unfortunately, he died before that question ever arose). 

Plenty of people want to avoid paying for care and would prefer the public purse to pick up the costs, but most attempts to achieve this will fail. See https://www.saga.co.uk/magazine/money/personal-finance/care/paul-lewis-paying-for-care

mathsForFun said:

Is it possible for me to do something different than exactly what his will states knowing that it would absolutely not be what he would have wanted if he had known the outcome?

No. Your role as an executor is to carry out the wishes expressed in his will. If it was 'absolutely not what he wanted' then the will should have been written to take such circumstances into account - or updated when it became obvious the girlfriend's mental health was failing. As always, hindsight is a wonderful thing...

Keep_pedalling

You have no choice but to do as the will directs. As she has lost mental capacity her inheritance needs to be held in trust for her. Check with the LA if they have obtained deputyship for her.

Gavin83

As others have stated you have no choice than to execute the will as specified. If for whatever reason you decide not to do this then potentially the LA could sue you for the care home fees. Needless to say this could be a life changing sum of money.

macman said:

It is presumed that she does not have capacity to make a Deed of Variation, or perhaps someone has a PoA over her affairs if not?
If so, all the beneficiaries have to agree to the variation.
However, if she voluntarily surrenders her inheritance, then deprivation of assets would presumably apply?

Whoever holds PoA wouldn't be able to authorise this anyway. They're obliged to act in the best interests of the individual and giving away a large sum of money to avoid care fees would almost certainly not be considered within their best interests.

As you mentioned it would likely be considered deprivation of assets anyway.

Ganga

Gavin83 said:

As others have stated you have no choice than to execute the will as specified. If for whatever reason you decide not to do this then potentially the LA could sue you for the care home fees. Needless to say this could be a life changing sum of money.

macman said:

It is presumed that she does not have capacity to make a Deed of Variation, or perhaps someone has a PoA over her affairs if not?
If so, all the beneficiaries have to agree to the variation.
However, if she voluntarily surrenders her inheritance, then deprivation of assets would presumably apply?

Whoever holds PoA wouldn't be able to authorise this anyway. They're obliged to act in the best interests of the individual and giving away a large sum of money to avoid care fees would almost certainly not be considered within their best interests.

As you mentioned it would likely be considered deprivation of assets anyway.

Would it not also be considered as an illegal act first.

Linton

Ganga said:

Gavin83 said:

As others have stated you have no choice than to execute the will as specified. If for whatever reason you decide not to do this then potentially the LA could sue you for the care home fees. Needless to say this could be a life changing sum of money.

macman said:

It is presumed that she does not have capacity to make a Deed of Variation, or perhaps someone has a PoA over her affairs if not?
If so, all the beneficiaries have to agree to the variation.
However, if she voluntarily surrenders her inheritance, then deprivation of assets would presumably apply?

Whoever holds PoA wouldn't be able to authorise this anyway. They're obliged to act in the best interests of the individual and giving away a large sum of money to avoid care fees would almost certainly not be considered within their best interests.

As you mentioned it would likely be considered deprivation of assets anyway.

Would it not also be considered as an illegal act first.

Yes. 

From a quick bit of research:

Giving up an inheritance by Deed of Variation is equivalent in these circumstances to making a gift which would require the approval of the Court of Protection

https://publicguardian.blog.gov.uk/2020/12/16/giving-gifts-as-an-attorney-or-deputy/ explicitly states that:

 Any gifts given should not impact on their ability to be able to pay for their care for the rest of their life and should be comfortably affordable. 

Finally it should be noted that misuse of PoA is regarded seriously by the courts.  One particularly blatant case resulted in a 4.5 year jail sentance.

bobster2

Even if it was legally possible I'm wondering what alternative way of distributing the estate the OP was thinking of? They don't mention any other potential beneficiaries. If there were any financially dependent children I suppose they could take legal action if the will makes no provision for them. But the OP doesn't mention children.

Marcon

bobster2 said:

Even if it was legally possible I'm wondering what alternative way of distributing the estate the OP was thinking of? They don't mention any other potential beneficiaries. If there were any financially dependent children I suppose they could take legal action if the will makes no provision for them. But the OP doesn't mention children.

Doesn't matter what OP was thinking - he can't do anything but act in accordance with the content of the will. 

jackieblack

Marcon said:

bobster2 said:

Even if it was legally possible I'm wondering what alternative way of distributing the estate the OP was thinking of? They don't mention any other potential beneficiaries. If there were any financially dependent children I suppose they could take legal action if the will makes no provision for them. But the OP doesn't mention children.

Doesn't matter what OP was thinking - he can't do anything but act in accordance with the content of the will. 

Or renounce the obligation of being an/the executor