Unusual clause in mum's will to repay debt

Sea_Shell

Worriedaboutwill06 said:

one of the witnesses is his girlfriend and the other a friend of my mum. I know they were not present at the same time and signed a copy in their own homes.

Can you PROVE they were not present?

The witnesses don't have to be fully "independent" they just have to not be beneficiaries, related to the testator or married to a beneficiary.

So girlfriend and friend are OK.

ETA to correct 

Worriedaboutwill06

Sea_Shell said:

Sounds like he's trying to "engineer" a "loan" that would be repayable to himself, which would take precedent over any other legacies.

I doubt he's done anything illegal...yet.  immoral maybe, but not illegal.

As sole executor, when the time comes, he pays back the "loan" first, then distributes the rest.

If you challenged this, The burden of proof would likely be on YOU to prove that this debt to the estate doesn't exist, as no one else is likely to be bothered about him proving it did.   Even if it avoided (some/all) IHT, HMRC may not investigate that thoroughly for relatively small amounts.

Thanks, a couple of years ago he was trying to find ways of avoiding inheritance tax and I know he has undeclared earnings so it is definitely something to do with tax avoidance

Worriedaboutwill06

KittenChops said:

Worriedaboutwill06 said:

one of the witnesses is his girlfriend and the other a friend of my mum. I know they were not present at the same time and signed a copy in their own homes.

I'm absolutely not an expert in this field so I'm sure someone with greater knowledge than I will confirm or deny - but imho that will isn't valid 

Had she made a will before this one?

Yes she did, however she said it was a cheap one and he wanted to do it so she let him. She is 82 and will do anything for a quiet life! 

RAS

There are two issues here.

Does he have Lasting Power of Attorney, both health and financial? If he has financial POA he is legally required only to act in a way which benefits your mother, not to help himself. 

Check the basics with the Office of the Public Guardian. Then come back and ask further

I'd also pay for a copy of the deeds for the house, £7, and set up a Property Alert. The owner isn't notified that the alert has been set up.

With respect to the will, what does your mother actually own? Is she married, widowed, divorced? Depending on her circumstances, there may be no Inheritance Tax to pay unless her assets exceed £1m. 

Flugelhorn

Although people who given power of attorney to someone else may well have capacity to write a new will.. on the other hand they may not and such capacity could be questioned

Worriedaboutwill06

Sea_Shell said:

Worriedaboutwill06 said:

one of the witnesses is his girlfriend and the other a friend of my mum. I know they were not present at the same time and signed a copy in their own homes.

Can you PROVE they were not present?

The witnesses don't have to be "independent" they just have to not be beneficiaries.

ETA - for the will.   PoA does need independent witnesses.

I can't prove the girlfriend was not there. But i may be able to get a statement from my mums friend, not sure how that will go but i could try. Neither of the witnesses are beneficiaries but obviously has an indirect gain if she stays with my brother.

Worriedaboutwill06

RAS said:

There are two issues here.

Does he have Lasting Power of Attorney, both health and financial? If he has financial POA he is legally required only to act in a way which benefits your mother, not to help himself. 

Check the basics with the Office of the Public Guardian. Then come back and ask further

I'd also pay for a copy of the deeds for the house, £7, and set up a Property Alert. The owner isn't notified that the alert has been set up.

With respect to the will, what does your mother actually own? Is she married, widowed, divorced? Depending on her circumstances, there may be no Inheritance Tax to pay unless her assets exceed £1m. 

Thank you. He has lasting power of attorney for financial and my sister has been named for health. My dad died a few years ago. There are no other assets but the house is probably worth close to £1m now o more

RAS

OK, so if the house ends up at £1.2m, then the estate settles bills and costs etc, maybe it ends up paying £40k in IHT. More likely mum will need some care (not necessarily residential) and that will reduce the value of the estate.

Of rather more concern is that your brother is building himself a flat. Perhaps he intends this to enable him to offer on site supervision and support to your mother? 

Presumably he will use his POA to create a lease permitting him to occupy?

That means he is probably thinking about two things. 

Property also occupied by a person aged over 60 is not taken into consideration when assessing contributions for social care fees. Whether the fact that he has another property is taken into account, I don't know.

It'll make it much more difficult to sell the house, before or after your mother's death, thus reducing it's value. By the way, it'll also attract it's own CT valuation.

Worriedaboutwill06

RAS said:

OK, so if the house ends up at £1.2m, then the estate settles bills and costs etc, maybe it ends up paying £40k in IHT. More likely mum will need some care (not necessarily residential) and that will reduce the value of the estate.

Of rather more concern is that your brother is building himself a flat. Perhaps he intends this to enable him to offer on site supervision and support to your mother? 

Presumably he will use his POA to create a lease permitting him to occupy?

That means he is probably thinking about two things. 

Property also occupied by a person aged over 60 is not taken into consideration when assessing contributions for social care fees. Whether the fact that he has another property is taken into account, I don't know.

It'll make it much more difficult to sell the house, before or after your mother's death, thus reducing it's value. By the way, it'll also attract it's own CT valuation.

I think my brother is investing spare cash into turning the ground floor into a flat, that he will occupy. Thanks to this forum im starting to work out that perhaps all construction, maintenance and bills and living costs will be going through this account that has been set up so when she dies, he will claim back everything that he has paid out, living rent free and has found away to 'use' money and receive it back legally through the estate. The ground floor has its own seperate access and he may even be planning to try purchase this, but i dont know. Unfortunately he has never been interested in my mothers welfare or giving her support. 

RAS

You need to start by contacting AgeUK and advising that you have safeguarding concerns. If nothing else they know the laws and words that trigger a response from the relevant powers.

I'd also do a quick check on your local planning application web-site.