What next?

Malthusian

Sea_Shell said:

ETA - this does raise the issue of what is "best interests" in cases like this.    What should any POA do in this situation where they are acting for one half of a married couple, if the POA documents don't specify how they'd like their finances managed.   

Married couples have a legal duty to maintain each other which still applies if one loses capacity.

The attorneys also have a duty to consider what the incapacitated spouse would have done if they still had capacity.

If the spouse asks for money from the donor's account to maintain their lifestyle, then the default position is that the attorneys should hand it over. Unless it harms the interests of the donor. Or possibly is blatantly out of line with how they lived when the donor had capacity - e.g. the couple previously lived frugally but as soon as the husband is in a care home the wife starts taking 6-star world cruises and asking for money out of the husband's accounts to fund them. But in that position I would be asking the Court of Protection for direction.

Which of course is why a court had to order for a monthly amount to be paid to her after the stepmother and children couldn't come to an agreement between each other.

As the children and stepmother seem incapable of coming to agreement on anything, I expect they are all going to end up back in court again. If only because a child and the stepmother have been appointed as joint executors, which seems unworkable. Leaving aside the ins and outs of the HMRC rebate, the DWP rebate and the Aviva policy. (It's still not confirmed whether this is actually part of the estate, and I'd be surprised that Aviva paid it out without Grant of Probate if it was; investment companies tend not to have de minimis policies in the way that banks do.)

Sea_Shell

Malthusian said:

Sea_Shell said:

ETA - this does raise the issue of what is "best interests" in cases like this.    What should any POA do in this situation where they are acting for one half of a married couple, if the POA documents don't specify how they'd like their finances managed.   

Married couples have a legal duty to maintain each other which still applies if one loses capacity.

The attorneys also have a duty to consider what the incapacitated spouse would have done if they still had capacity.

If the spouse asks for money from the donor's account to maintain their lifestyle, then the default position is that the attorneys should hand it over. Unless it harms the interests of the donor. Or possibly is blatantly out of line with how they lived when the donor had capacity - e.g. the couple previously lived frugally but as soon as the husband is in a care home the wife starts taking 6-star world cruises and asking for money out of the husband's accounts to fund them. But in that position I would be asking the Court of Protection for direction.

Which of course is why a court had to order for a monthly amount to be paid to her after the stepmother and children couldn't come to an agreement between each other.

As the children and stepmother seem incapable of coming to agreement on anything, I expect they are all going to end up back in court again. If only because a child and the stepmother have been appointed as joint executors, which seems unworkable. Leaving aside the ins and outs of the HMRC rebate, the DWP rebate and the Aviva policy. (It's still not confirmed whether this is actually part of the estate, and I'd be surprised that Aviva paid it out without Grant of Probate if it was; investment companies tend not to have de minimis policies in the way that banks do.)

Thanks for that.   It must be quite upsetting for a spouse to have to go cap in hand to an attorney (in this case step children) and ask for money, like Oliver!

Feeling they have to justify every £ to them. ☹️

kelloggs36

She was paying for expensive holidays and things, not day to day living. She did not have to go cap in hand to the attorneys, it is a legal requirement to keep accounts and she refused to provide any. Had she done so, they would have been in a position to be more generous for want of a better word. Their father had lots of investments but she did not declare all of them. As she had joint poa then moneys were paid to her. All they have ever wanted was to be in a position where they had all of thr information. How can they apply for probate when she won't declare thw refunds which form part of his estate? Why is this unreasonable to expect? If she was honest and up front, none of this would have been necessary. She and she alone is holding up the whole process. From her declaration that all of her savings is for her grandchildren means that she expected her husband to pay for everything and she keep all of her money to the detriment of his family, which is not what he intended. 

kelloggs36

The latest is that she objects to the title of the house being transferred into the names of the siblings, as per the Will. She has the lifetime right to occupy but the house has been left to the siblings and she doesn't want that.

Savvy_Sue

Hence the suggestion of 'proper' legal advice. She may not want to accept what the will says, but if it is set out in black and white, by a qualified solicitor, she has the option to get her own legal advice. 

But do consider at what point it's easier to pay her off and be shot of her (because it sounds as if that is what 'his' children want to happen). 

kelloggs36

I agree. I am not involved, just reporting. It's the siblings are so angry.

Sea_Shell

kelloggs36 said:

The latest is that she objects to the title of the house being transferred into the names of the siblings, as per the Will. She has the lifetime right to occupy but the house has been left to the siblings and she doesn't want that.

I can see and appreciate why she might feel that way, as she will always now be living in a house owned by her step-children and therefore they will always remain connected in this way.   Depending on their relationship, (which doesn't sound great TBH) that might be very awkward.   No clean break, no "closure".  


However, as I see it, one of 3 things will now happen...

• They talk her round and it gets agreed that the Will will be administered, as written.
• She continues to dig her heels in, and so nothing gets done.  (we've recently read of an 8 year 'stalemate' in the administration of an estate)
• Legal Action is taken to remove her as a Joint Executor

Linton

kelloggs36 said:

The latest is that she objects to the title of the house being transferred into the names of the siblings, as per the Will. She has the lifetime right to occupy but the house has been left to the siblings and she doesn't want that.

Doesn’t legal ownership of the house go to trustees until the siblings get their inheritance when the life interest ends under the terms of the will?

Are the siblings taking legal advice in their dispute.?

What do the siblings believe they could do if they were the registered owners? Hopefully it’s not to try and make step-mother’s life more difficult.

Malthusian

The siblings might well be the trustees - or some of them. If the life interest (stepmother) and the remainderpeople (siblings) have a civil relationship, that is not necessarily a bad thing. They have a mutual interest, and the alternative is that you pay a lot of money for professional trustees, or find an independent amateur trustee willing to do a thankless and onerous job for free (who may well lose interest and therefore make it difficult to manage the trust). In this case though...

Who is responsible for maintaining the property? (If the answer is anything other than "the stepmother" I see trouble ahead.)

Since the stepmother has resources of her own, would it be feasible to wind the trust up early, sell the house and buy out her life interest with a proportion of the proceeds commensurate with her life expectancy?

RAS

All the stuff about the POA is water under the bridge, legally. It is irrelevant to the situation since the father/husband died.

Depending what step-mum was left, she may have the right to make a claim for additional financial provision as a dependant under the Inheritance Act, any time in the 6 months after probate is granted.

It surprises me that the other executor hasn't taken proper legal and financial advice about the Trust created under the will, not least as transferring the property into the children's names has major downsides for them and may not even be appropriate. The other executor needs to do that, possibly taking another sibling as notetaker but not as a client.

If the decision to try and remove her as executor is taken, after legal advice, or she claims under the Inheritance Act, the fact that she was previously told to provide records and failed to do so may be relevant. Otherwise the children need to get over their antagonism to their step-mother as it may not look good in court.i