New Will Found after mum's death

Exodi

BooJewels said:

Exodi said:

Brie said:

Should we presume your brother isn't willing to talk to anyone about this and sort things out?  If so then talk to the solicitor who drew up the will.  First question would be was mum of sound mind and knew what she was doing?  Did the solicitor check on this?  

presumably you could take it to court and have the new will overturned but if the estate isn't worth much (a very relative term of course) then the solicitors will be the only ones to win out of this.  

Depending on the circumstances, I'm not sure the brother or mother are obliged to inform the family of any updates/changes to the mothers will, nor defend them to the future beneficiaries. I'm not sure what you mean by 'sort things out', her will is her wishes, there should be no negotiation on what she wanted. Inheritances are a gift not a right.

Of course this is all assuming there are no grounds for contest, and granted, a revision at 90 years old with an LPA granted, there certainly could be some. However, the scenario of a mother changing a will to the benefit of the child supporting them in their final years is not unreasonable or uncommon.

I'd always advice court as a last resort as the only people that usually end up winning are the solicitors.

I meant to respond to this in my earlier post, but forgot to.  In respect of the bit in bold - I don't think it was the brother with the LPA that assisted with the will changing - it was another brother - so I don't think the will was changed to reflect the assistance from an Attorney, I think the new 'beneficiary' was a different person entirely.

Also worth noting here, that the one thing you are actually forbidden from doing under an LPA, is to change the donor's will.

You're right, it is a different brother - my bad.

That certainly changes everything. I think the presence of an LPA could serve as evidence that the deceased may not have had sufficient mental capacity.

Exodi

badmemory said:

The solicitor should have asked her some searching questions to check everything was alright & not allowed anyone else in the room whilst taking instructions.  My solicitor told me what he was doing & why & I was only in my 60s.  They are supposed to be very careful now & also it protects themselves.  I would be asking that solicitor some searching questions.

In my situation the solicitor required that I left the room for half hour while they spoke 1 on 1 through the will with my stepdad, and that the signing was done individually, to ensure he understood it and also as to mitigate against any future allegations of coercion.

They also had a long, seemingly random, conversation to assess his mental capacity and concluded that they believed he was of sound mind.

Marcon

The Law Society guidance is pretty clear: https://www.lawsociety.org.uk/topics/client-care/working-with-clients-who-may-lack-mental-capacity

OP, if you've not yet done so, talk to a solicitor about a possible Larke V Nugus request, which is basically a request to the will writer to provide information about the circumstances of the will's preparation.

SiliconChip

Brie said:

I think the crucial bit may be that if brother with the LPA is acting because the LPA has been activated as needed (or whatever the correct terminology is) then second brother should not be changing the will as the LPA shows mum is not capable of making sound decisions.  

That's not necessarily correct, my LPA is registered (which is the term you were looking for) already but I am of perfectly sound mind and will hopefully be capable of making my own decisions for a good few years to come. The point of registering a LPA while still capable is that if you wait until you're incapable then you're no longer in a position to register it anyway, and your attorneys would need to go to the Court of Protection for it to be done by then, at considerable expense and significant delay.

Marcon

SiliconChip said:

Brie said:

I think the crucial bit may be that if brother with the LPA is acting because the LPA has been activated as needed (or whatever the correct terminology is) then second brother should not be changing the will as the LPA shows mum is not capable of making sound decisions.  

That's not necessarily correct, my LPA is registered (which is the term you were looking for) already but I am of perfectly sound mind and will hopefully be capable of making my own decisions for a good few years to come. The point of registering a LPA while still capable is that if you wait until you're incapable then you're no longer in a position to register it anyway, and your attorneys would need to go to the Court of Protection for it to be done by then, at considerable expense and significant delay.

A financial power of attorney can be used while someone still has capacity (if that's how the LPA was drawn up), so not sure the LPA in question actually shows anything about whether or not mum was capable of making sound decisions.

BooJewels

Indeed @Marcon - I've been an active Attorney twice recently and neither of my Donors had lost capacity whilst I was doing things for them (as there were no restrictions outlined in them) - at least under the Financial LPA - the welfare ones kicked in at the last minute.  So most of what I did - at least initially - was to supplement what they managed themselves, rather than fully take over - they don't have to be all or nothing.  Or necessarily indicate any inability to do things for themselves, or lack of capacity.  In my father's case, he simply didn't give a ****.

For example, I had registered with my aunt's bank as her Attorney (after an incident highlighted that it might be a good idea) - she sold her car and didn't want to release the paperwork until she knew she'd got the funds in her bank, so I could log in to on-line banking and confirm the payment whilst on the phone to her - all done in about 3 minutes.  

Exodi

SiliconChip said:
my LPA is registered already but I am of perfectly sound mind

BooJewels said:

I've been an active Attorney twice recently and neither of my Donors had lost capacity whilst I was doing things for them

While interesting, I'm not sure how relevant these anecdotes are to the OP. No-one is suggesting that it's entirely impossible for someone with a LPA registered to have the mental capacity to write a will. 

If we look at the OP's circumstances, the deceased was 90 years old, and drew up a new will in the year of their death, with an LPA in place. Maybe it's not impossible, but even someone without a cynical bone in their body would raise their eyebrows at the circumstances.

At least, the solicitors who assessed her as capable should be spoken to.

SiliconChip

Exodi said:

SiliconChip said:
my LPA is registered already but I am of perfectly sound mind

BooJewels said:

I've been an active Attorney twice recently and neither of my Donors had lost capacity whilst I was doing things for them

While interesting, I'm not sure how relevant these anecdotes are to the OP. No-one is suggesting that it's entirely impossible for someone with a LPA registered to have the mental capacity to write a will. 

That's exactly what @Brie was suggesting, hence my pointing out that there are circumstances where a person with a registered LPA can still do all or some of the functions covered by the LPA themselves. In the OP's relatives case it may well be that they didn't have capacity, but we don't yet know one way or the other.

BooJewels

Exodi said:

SiliconChip said:
my LPA is registered already but I am of perfectly sound mind

BooJewels said:

I've been an active Attorney twice recently and neither of my Donors had lost capacity whilst I was doing things for them

While interesting, I'm not sure how relevant these anecdotes are to the OP. No-one is suggesting that it's entirely impossible for someone with a LPA registered to have the mental capacity to write a will. 

If we look at the OP's circumstances, the deceased was 90 years old, and drew up a new will in the year of their death, with an LPA in place. Maybe it's not impossible, but even someone without a cynical bone in their body would raise their eyebrows at the circumstances.

At least, the solicitors who assessed her as capable should be spoken to.

If you want to tell people what to post, you need to apply to be a moderator.  This is a discussion forum and read by a lot more people than post and sometimes misunderstandings need to be clarified - and sometimes an 'anecdote' can illustrate things more clearly than a more formal explanation.  When my Dad was the first family member to draw up an LPA, his solicitor used a similar anecdote, of how her own had been used, to illustrate to me how I might use it, in that it didn't necessarily require him to have lost capacity first - which was my misunderstanding at the time. That allowed the penny to trop with me.  Same as I didn't grasp initially that they could also be used in a supplementary or temporary capacity and it doesn't require you to take over everything entirely and permanently - I think this is a popular misconception.

It's a useful distinction to make - especially as the financial and welfare LPAs differ in this regard - and can be further variable if there are any terms/restrictions set into them by the Donor too.   Elderly people are very likely to re-write wills in later life - as spouses, siblings, executors and friends pass away and their circumstances change - my Dad re-wrote his at 86, my MIL at 91 and my aunt at 92.  And I know in all three cases that the solicitors took clear measures to ensure they knew what they were doing - just as you experienced yourself.  

The OP's question has already been answered - they need to establish what measures the will writing solicitor took to ensure that the lady in question had the capacity and understanding to write a new will and that no coercion was in place - probably best done via their own solicitor.  Whether that helps them to move to resolve their concerns or not depends on a lot of detail we're not party to.  

Pedmore_gent

Interested if the Will was printed off the internet and not witnessed by a solicitor would it be valid considering the LPA.