Disputed transfer of monies from gran's account to my daughter

speedy65

Hi, My elderly ex mother in law, a wonderful lady, set up telephone banking on my daughter's phone some time ago as my daughter was her main source of support, emotionally and practically. This was done by calling the bank and asking for this happen so the bank spoke to my daughter and to my ex MIL to set this up for them, (MIL was a switched on individual and was very aware of her decisions) thus giving my daughter 3rd party access to the bank account from which she then managed MIL bills etc as required. MIL became ill this year and advised my daughter that she didn't want her son's, who provided no kind of support at any time, to have her savings. She said that this was to go to her 2 great grandchildren. When she was hospitalised in her last few weeks, where she was listed as her next of kin, she asked my daughter to move the money out of her account for the children which my daughter did. On the her death, her son's have bullied and threatened my daughter with arrest for fraud and theft of said money. MIL was compus mentus when she told my daughter to move the money and had already previously discussed this with both of my daughters. She has been told by the son's that she has to have the money back in the bank immediately or she will be in trouble as the bank are now investigating a fraudulent action and she will be arrested. Is my daughter in trouble for doing something that her nan asked her to do, and did whilst MIL was alive?

Can anyone advise please?

Devongardener

Did your daughter have Power of Attorney?  Was there a will which detailed the beneficiaries?
If there was no will then the sons will automatically inherit and as such are entitled to query what has happened to your MILs funds and to require anything that wasn’t used for her day to day needs be returned.   It doesn’t matter that your daughter was MILs next of kin contact for the hospital, it means nothing legally.

General_Grant

speedy65 said:

Hi, My elderly ex mother in law, a wonderful lady, set up telephone banking on my daughter's phone some time ago as my daughter was her main source of support, emotionally and practically. This was done by calling the bank and asking for this happen so the bank spoke to my daughter and to my ex MIL to set this up for them, (MIL was a switched on individual and was very aware of her decisions) thus giving my daughter 3rd party access to the bank account from which she then managed MIL bills etc as required. MIL became ill this year and advised my daughter that she didn't want her son's, who provided no kind of support at any time, to have her savings. She said that this was to go to her 2 great grandchildren. When she was hospitalised in her last few weeks, where she was listed as her next of kin, she asked my daughter to move the money out of her account for the children which my daughter did. On the her death, her son's have bullied and threatened my daughter with arrest for fraud and theft of said money. MIL was compus mentus when she told my daughter to move the money and had already previously discussed this with both of my daughters. She has been told by the son's that she has to have the money back in the bank immediately or she will be in trouble as the bank are now investigating a fraudulent action and she will be arrested. Is my daughter in trouble for doing something that her nan asked her to do, and did whilst MIL was alive?

Can anyone advise please?

Are you writing of one or more sons?
How is the funeral being financed?
Was everything in the one account?
Were there no other bills to be paid?

speedy65

She didn’t have Power of Attorney because her nan was completely compus mentus so that wasn’t necessary but had mobility issues so struggled to go to the bank or in fact anywhere without the support of my daughter. The bank spoke to both parties when the banking app was set up the phone so I’m hoping notes were made on the account to this effect. One son was absent for 20 years, only coming back once MiL was ill. The other son saw her once or twice a fortnight, borrowed money and took a catalogue out in her name which she only found out after asking my daughter to check out a letter that she’d received telling her she’d missed a payment! Despite having absolutely no debt of credit previously, she died with adverse credit due to a series of missed payments. Neither of these men have been involved in caring for her, taking her shopping, taking her to doctor/hospital appointments, supporting her emotionally/practically, spending time with her, organising bill payments etc. for all of these reasons, she didn’t want them to have her money so told both of her granddaughters that their children were to have her money, this was raised again whilst she was in the hospital which is when she instructed my daughter to transfer the money. 

Rich2808

I am assuming your mother in law did not leave a will specifying her grand-daughters - not her sons - should inherit her estate?

So legally as she died intestate her sons - as nearest next of kin - inherit her estate.

What is right or moral or what your MIL said she wanted is academic - her estate and her assets pass to her sons if there is no will specifying otherwise or no witnesses to the discussions in the hospital. I also assume there is no written record to confirm she agreed to pass the moneys to your daughter?  And without written proof the sons can claim fraud and seek legally to recover the sums paid out for the estate.

Hopefully it won't come to that - but legally the sons are within their rights to do this without proof of gran's intentions.

This just highlights the importance of making a will if you don't  want your closest next of kin to inherit your estate. Sadly too late in this case!

elsien

I don’t think I’d be taking the sons' words for anything. It’s easy enough for them to claim all sorts of things about bank investigations and fraud but that doesn’t make it true. 

If there was a third-party bank mandate, then the bank should have a record of that. It may also depend as to whether there were any restrictions set up a money, could we take a out/used for.
It was remiss of the lady not to have made a will to cover her wishes, but the son’s making threats doesn’t mean that they will follow through or that anyone will take it any further, even if they do.
What sort of sums of money are you talking about here?

tacpot12

If the bank is investigating, they will either accept that the third-party mandate was valid or that it wasn't. If they have been acting on a third-party mandate that wasn't valid, they will also be in trouble, so I think it much more likely that they will find that the third-party mandate was valid, and so will not contact the police.

It's not certain that there will be a record of the three-way discussion that occurred when the access was given to your daughter, but if the arrangement went on for many months, and the daugher only paid bills and transferred money as your MIL requested, I think the bank will conclude that all such transfers were authorised by your MIL. They will not want to get involved in a family dispute over whether one or two transfers out of many were authorised or not. I think they will decide either they all were authorised or they all weren't, and it is therefore much more likely that they will decide they they were all authorised and there was no fraud.

I don't think the police would take any action either as there is no evidence that the MIL did not instruct your daughter to move the money. A power of attorney would not have allowed your daughter to move the money to her children's accounts - all actions under a power of attorney have to be for the benefit of the donor (the person who grants the PoA), so only a third-party mandate would have allowed this happen, and such a mandate appears to have been in place. Even if your MIL's mental capacity was in question at the end of her life, her son's would have to show that she didn't have capacity when she gave the instructions AND your daughter knew or suspected that she didn't have capacity. 

If your daughter owns her own home, have her check her home insurance to see if she has legal expenses cover. If she does, she can call the Legal Helpline provided by her insurer, who may be able to give her some advice and/or reassurance. However, they might not be able to help if this does become a criminal matter, but I dont' think that this is going to happen.  

Brie

In my opinion this is a problem in 2 parts.

First is the transfer of money.  If this was done on instruction from someone who knows what they are doing then there's no comeback on that. The fact that it was your daughter who moved the money is immaterial, it could have been the bank acting on instructions instead.  It might be helpful to get a signed statement from some third party (carer, nurse) to state that mom was mentally aware of what she was doing.  I would think that would lay any doubts to rest .

Next is the will, or lack thereof.  A will can only deal with things at the time of death.  If mom no longer had money her family can't suddenly demand it be in her account.  Mom might have blown the lot at the ponies or bought drinks for everyone at her favourite pub. The money isn't in her account so there's nothing to distribute.  The sons are only making threats because they think they can bully someone into reversing an action that mom sanctioned while alive.

elsien

I don’t think it’s realistic to get a signed statement from the hospital. Capacity is time and decision specific and can’t be assessed in retrospect so it would’ve required someone to have had a specific financial conversation with mother-in-law, and also be willing to sign to say that, which your average nurse/HCA on the ward is absolutely not going to be doing. 

boingy

The way I see it is that she died intestate and so whatever money and assets she had at the point of death will be distributed according to the intestate rules. The money that was transferred out prior to that is not part of the estate and the person that made the transfers has not personally gained from those transfers so it would be hard to make a fraud charge stick. If I was the daughter I'd just sit tight and ignore the empty threats. If any real threats are made then report them to the police.

Shakin_Steve

Speak to a solicitor., someone who knows the legal position.