Leaving money - deprivation of assets 3 February at 11:09AM in Benefits & tax credits 17 replies 1.2K views

Ciprico

If a parent had 2 children.

One being in care with means tested benefits. 

If the parent left everything in their will to the non-care child... 

Could this be seen as deprivation of assets

MattMattMattUK

Ciprico said:

If a parent had 2 children.

One being in care with means tested benefits. 

If the parent left everything in their will to the non-care child... 

Could this be seen as deprivation of assets

No, it would not be deprivation of assets as the child has no automatic right to inheritance and the money is not theirs. 

pmlindyloo

Ciprico said:

If a parent had 2 children.

One being in care with means tested benefits. 

If the parent left everything in their will to the non-care child... 

Could this be seen as deprivation of assets

The individual in care and claiming means tested benefits could challenge the will specifically on the grounds that they were not adequately provided for - but an expensive business to do so.

If this is an hypothetical question and the person is not deceased but thinking of making a will, then they should get some advice about setting up a discretionary trust (I believe that is the term) for the individual in care.

Hopefully someone knowing more about these discretionary trusts will be able to give more information.

TELLIT01

Could the organisation responsible for the care of the individual challenge the will on the same basis?

HillStreetBlues

TELLIT01 said:

Could the organisation responsible for the care of the individual challenge the will on the same basis?

No
It has to be the person.

Caz3121

MattMattMattUK said:

the child has no automatic right to inheritance and the money is not theirs. 

in Scotland there are 'legal rights' for children so cannot disinherit although the child can choose to waive their legal rights.

p00hsticks

HillStreetBlues said:

TELLIT01 said:

Could the organisation responsible for the care of the individual challenge the will on the same basis?

No
It has to be the person.

Surely it would depend on exactly why the person is in care and whether the organsation looking after them has POA for them ? If the person lacks mental capacity and the organisation has POA, then I think you could argue that they'd possibly be acting in their best interests in at least considering putting forward a challenge on their behalf. (Depending of course on the potential cost of lodging a claim as against the potential inheritance).

If they can't then you are in effect saying that someone lacking the capacity to do so themself is not able to make any challenge to a will., which doesn't seem right.

diystarter7

Hi OP

Hopefully you are in England where the law sides with the person/s that have worked hard to build up an estate and therefore its up to them to give to oe, both or none of the children as they could blow it away give it away to anyone they wanted to.

Thanks

HillStreetBlues

p00hsticks said:

HillStreetBlues said:

TELLIT01 said:

Could the organisation responsible for the care of the individual challenge the will on the same basis?

No
It has to be the person.

Surely it would depend on exactly why the person is in care and whether the organsation looking after them has POA for them ? If the person lacks mental capacity and the organisation has POA, then I think you could argue that they'd possibly be acting in their best interests in at least considering putting forward a challenge on their behalf. (Depending of course on the potential cost of lodging a claim as against the potential inheritance).

If they can't then you are in effect saying that someone lacking the capacity to do so themself is not able to make any challenge to a will., which doesn't seem right.

Yes i would depend on the situation but the question was about deprivation of assets.
AFAIK  a will can't be challenged for this reason as the body (eg DWP) has no right to do so.

If someone has POA the  the challenge would still be  in the name of the person who would inherit, but would have to be in the person's interest.

If the persons needs are being met in the care home then I  doubt there could be a challenge,  but if they aren't then that person  or via their POA could challenge it.

 

Bigwheels1111

I have two brothers, love one, hate the other.
Only one will inherit from me.
Thats life and no one else’s business.

Im hoping the brother above that’s inheriting the money would know why and make sure his brother is secure financially.
why give money to someone knowing it will be taken away. 

elsien

p00hsticks said:

HillStreetBlues said:

TELLIT01 said:

Could the organisation responsible for the care of the individual challenge the will on the same basis?

No
It has to be the person.

Surely it would depend on exactly why the person is in care and whether the organsation looking after them has POA for them ? If the person lacks mental capacity and the organisation has POA, then I think you could argue that they'd possibly be acting in their best interests in at least considering putting forward a challenge on their behalf. (Depending of course on the potential cost of lodging a claim as against the potential inheritance).

If they can't then you are in effect saying that someone lacking the capacity to do so themself is not able to make any challenge to a will., which doesn't seem right.

Organisations looking after people tend not to have power-of-attorney for them because that would be a conflict of interest. Even if the person was able to make a power-of-attorney.

And if the person is someone for example with a learning disability who only has benefits, they wouldn’t need a deputyship because the amount of money doesn’t make it worthwhile. They would just having an appointee.