Deputy failed to make a will

LouiseG5033

I need help if that’s OK… my brother in law (husband’s brother) recently passed away. He sustained a brain injury around 12 years ago after being knocked down. It was touch and go whether he would survive at the time but he did pull through. It was a long journey back to some sort of health, with my BIL spending a month in hospital and 8 months in neuro rehab. Family dynamics are complex in my husbands family - at the time of BILs accident, his Mum was being looked after by his sister and lived with her. He had not had any contact with his Dad since childhood and sister was estranged from  BIL (her brother) it felll to my husband to look after his brother. We fought for compensation for my BIL on the recommendations of the police and, after a long hard battle, BIL was awarded £2.3 million in compensation. We fought hard to get BIL in assisted living for those with a brain injury after he spent some time in a care home upon leaving neuro rehab. 

Once he was awarded compensation, this was transferred to a deputy under court of protection and they bought him a bungalow and he had day carers. The solicitor who was deputy at the time told my husband she would make a will and we didn’t think any more of it. We had cause a few years later to complain about the deputy and she was replaced with someone else. We learned years later she had been sacked, but we don’t know what for, and then she died a couple of months later.

Long story short, the solicitors dealing with deputyship have never been good at keeping in contact with my husband and I. BIL died suddenly last weekend and we learn there was no will. His Dad, who BIL, had no relationship with, is still alive and set to inherit £2 million as BIL’s next of kin. His dad is in his mid 80s and has dementia. We did not care about the money, but we didn’t fight in court to hand over £2 million to someone he had no relationship with!  We believe the solicitor should have made a statutory will as they were well aware of family dynamics. Do we have anywhere to go with this? 

Thanks in advance 

msb1234

I’m Deputy for my stepfather. He does have a will, but the information I have says that the will cannot be altered in any way. I’m not sure why the solicitor mentioned making a will for someone who did not have capacity, hence the need for a deputy. 

elsien

LouiseG5033 said:

I need help if that’s OK… my brother in law (husband’s brother) recently passed away. He sustained a brain injury around 12 years ago after being knocked down. It was touch and go whether he would survive at the time but he did pull through. It was a long journey back to some sort of health, with my BIL spending a month in hospital and 8 months in neuro rehab. Family dynamics are complex in my husbands family - at the time of BILs accident, his Mum was being looked after by his sister and lived with her. He had not had any contact with his Dad since childhood and sister was estranged from  BIL (her brother) it felll to my husband to look after his brother. We fought for compensation for my BIL on the recommendations of the police and, after a long hard battle, BIL was awarded £2.3 million in compensation. We fought hard to get BIL in assisted living for those with a brain injury after he spent some time in a care home upon leaving neuro rehab. 

Once he was awarded compensation, this was transferred to a deputy under court of protection and they bought him a bungalow and he had day carers. The solicitor who was deputy at the time told my husband she would make a will and we didn’t think any more of it. We had cause a few years later to complain about the deputy and she was replaced with someone else. We learned years later she had been sacked, but we don’t know what for, and then she died a couple of months later.

Long story short, the solicitors dealing with deputyship have never been good at keeping in contact with my husband and I. BIL died suddenly last weekend and we learn there was no will. His Dad, who BIL, had no relationship with, is still alive and set to inherit £2 million as BIL’s next of kin. His dad is in his mid 80s and has dementia. We did not care about the money, but we didn’t fight in court to hand over £2 million to someone he had no relationship with!  We believe the solicitor should have made a statutory will as they were well aware of family dynamics. Do we have anywhere to go with this? 

Thanks in advance 

No, you fought in court so that your brother-in-law  had the care that he needed to deliver reasonable quality care and a more independent life. 

Which is what happened until he passed away - depending on how long he had lived, for, there may have been in an inheritance left, or they may not, but this was about him when he was alive.

Deputies cannot just make wills. There would have had to have been an application to the court of protection for the statutory will evidencing that it was in his best interests to do so. Which may or may not have been agreed, taking into account his previous views and wishes. Other than making a complaint against the firm, I don’t think there is anything else that you can do now. 

Although there is also the possibility that when the father  passes away, if he hasn’t made a will some of it could come back down follow the intestacy rules anyway. 

LouiseG5033

I was talking about a statutory will , sorry I didn’t make myself clear.  Apparently these should be made if the person does not have capacity and had seizeable assets  

LouiseG5033

Thank you both for the advice. Barely any of the inheritance was used in the 12 years since my BILs accident as he was on benefits and so he still  got a lot of help. Award was based on a life expectancy of 71 and BIL lived to be almost 63. We thought the bulk of the money (money awarded for his care) would go back to the insurance company and we would have preferred it that way. 

Keep_pedalling

LouiseG5033 said:

I was talking about a statutory will , sorry I didn’t make myself clear.  Apparently these should be made if the person does not have capacity and had seizeable assets  

They can (rather than should) be made, but the deputy’s main duty is to look after the best interest of the person who they have deputyship for rather than their siblings. If your BIL had a wife or partner and children this would have been more of an issue and a SW would have been more important.

LouiseG5033

Keep_pedalling said:

LouiseG5033 said:

I was talking about a statutory will , sorry I didn’t make myself clear.  Apparently these should be made if the person does not have capacity and had seizeable assets  

They can (rather than should) be made, but the deputy’s main duty is to look after the best interest of the person who they have deputyship for rather than their siblings. If your BIL had a wife or partner and children this would have been more of an issue and a SW would have been more important.

Thank you for your reply. I understand a bit more now . 

Malthusian

Keep_pedalling said:

They can (rather than should) be made, but the deputy’s main duty is to look after the best interest of the person who they have deputyship for rather than their siblings. If your BIL had a wife or partner and children this would have been more of an issue and a SW would have been more important.

I see where you're coming from, but a statutory Will would arguably be less important as the desired beneficiaries (wife and/or kids) could inherit under intestacy in that situation (although possibly in an undesired combination), rather than the father.

That said, I agree with the others above that the argument that the deputy had a duty to make a statutory Will is very weak. There was nothing stopping the deceased from making a Will before his injury. Yes, I realise he didn't have £2 million at the time. It is still a thing that people do if they actively don't want an estranged relative to be at the front of the intestacy queue. Being estranged from a nearest relative doesn't automatically mean you want to exclude them from your estate.

It was open to the OP's husband to apply for the deputyship to look after his brother's affairs, instead of the solicitors. And if he had been his brother's deputy, it would also be appropriate for him to apply to the Court of Protection for a statutory Will; if one had been applied for to exclude a father not seen since childhood, there seems a reasonable chance it would eventually have been granted. But there's a big difference between "a statutory will would be granted" and "the deputy has a duty to apply for a statutory Will".

And the OP's husband didn't want to look after his brother's affairs beyond getting the compensation, which is fine: he was not his brother's keeper. It just means that it's a bit late now to complain about the result. 

LouiseG5033 said:

His Dad, who BIL, had no relationship with, is still alive and set to inherit £2 million as BIL’s next of kin. His dad is in his mid 80s and has dementia.

Presumably his mother is deceased if dad is sole heir?

I don't think you have any grounds to challenge the intestacy distribution, as (assuming English / Welsh law applies) the people being "disinherited" aren't a spouse, children or being maintained by the deceased. 

I agree with the comment above that given dad's state of health, it may not make much odds in the long run. On his death the money may flow down to his children, including OP's husband (and the estranged sister). 

If Dad has disinherited OP's husband, husband would potentially be able to claim against his father's estate under the Inheritance (Provision for Family and Dependants) Act, if his father's Will did not make reasonable provision for him. Children may have a claim under the I(PFD) Act, brothers cannot *edit* do not unless they are maintained in life. 

Spendless

No you don't.

 I started reading your story with an air of chill running through me because it is eerily similar to my son's Uni friend. Initially  I thought you were talking of the same person. It was only when I read further I realised you weren't. Son's Uni  friend was sole heir to his Dad's estate (that also ran into millions due to the compensation claim with Dad dying 12 years after the accident after sustaining a brain injury and then always having to live with assisted care). Some months later son's Uni friend showed me some documentation he had been given re his Dad and one of things I read was  his Dad had seen a GP a month before his death for 'assess the ability to make a will'. No further GP appts were mentioned on the info or the outcome of that visit but no will was then made, leaving Dad's only child (my son's friend) to inherit everything.

So no unfortunately the rules of intestacy apply. If Dad is the only surviving parent it goes to him (to pay for his care). If both parents are alive it's split between them.

LouiseG5033

Hi 

Thank you all for your comments - I really appreciate it. My husband is the youngest sibling and is my BILs half brother. BIL was eldest sibling and his Mum and Dad split up many many years ago and his Dad I remarried many many years ago. So, inheritance will go to Dad and his current family, who BIL  had not seen throughout his adult life. 

LouiseG5033

Sorry, yes BILs Mum is sadly deceased.