Power of Attorney & Will

Is_That_for_Real

My elderly mother suffered with Dementia and because of this my sister had Power of Attorney.  

Last year, my sister sold my mother’s property for £410k.  She used £200k of this to purchase a larger property of £500k and mum moved in with her.   Mum has recently passed away having only lived for a few months with my sister.  Both my sister and I are equal beneficiaries in mum’s Will.  There is £200k left in the estate.  My sister wants to split this (£100k each), but my argument is that she has already taken her share, which she put into her new house and I should receive the £200k that is left.   Doing what my sister wants (she is also the executor) means that she will receive a total of £300k and I receive £100k.    That does not seem fair to me.   What do others think?  Thank you

FlorayG

In whose name is the house?

Keep_pedalling

Assuming the new house was only in your siblings name your sister went way over the powers the LPA gave her the option of doing what is right by giving you a fair share or you will take legal action against her to recover your inheritance. 

RAS

Your sister was required to act in mum's best interests, and that would include protecting the value of her assets so that if she needed residential care, they were available.

I'd want to know how mum's house was sold and the assets used to buy the house in which she didn't have a clear share of title? Or was this set up as a joint tenancy with sister now claiming sole tenancy?

There was a similar case a decade ago although the donor was alive. Houses sold and new one purchased, in attorney's name only. When a relative realised they contact the Court of Protection.

Didn't go well for the attorney, who was basically allowed to live in the house and care for mum until mum's death. At which point the house would be sold and the attorney's share used to pay legal fees. The relative would get most of their share despite their name not being on the deeds.

However the CoP apparently refuse to get involved once the donor dies. But no harm in asking if that is still the case?

You could check whether the Land Registry have updated ownership? They were taking 12-18 months. It might just be possible to intervene.

I'd certainly find out how to apply to enter a caveat with the Probate Registry, although I think you only get 2x6 months delay? 

And I'd try to find out whether your police force has an Financial Abuse and Exploitation Team, or similar. I've seen two cases reported in the last few weeks where people have been jailed for diverting donor's funds to their advantage. You may be able to have a "What if" conversation to assess whether they'd take action?

Is_That_for_Real

FlorayG said:

In whose name is the house?

We believe it is in my sister's name.

Flugelhorn

Is_That_for_Real said:

FlorayG said:

In whose name is the house?

We believe it is in my sister's name.

worth downloading the land registry record to check who it is registered to - costs £7  (that is if the registration has gone through yet - they are taking time) 

https://www.gov.uk/get-information-about-property-and-land/copies-of-deeds

RAS

Not sure if @Land_Registry could advise if there is any way to get the information before the registration is completed?

markie_127

This is a complex situation involving property law, inheritance, and the responsibilities of a Power of Attorney. Here's a breakdown of the key considerations and how others might view this:

Understanding the Core Issue:

• Power of Attorney (POA): Your sister, as POA, had a fiduciary duty to act in your mother's best interests. This means she had to prioritize your mother's well-being and financial security, not her own.
• Estate Distribution: The will dictates how the remaining estate is to be distributed.
• The Property Sale and Purchase: The key point of contention is how the £200,000 from the sale of your mother's property was used to purchase the new, larger property.

Arguments and Perspectives:

• Your Sister's Perspective:
  • She might argue that the £200,000 invested in the new property was for your mother's benefit, improving her living situation.
  • She may see the remaining £200,000 as the only asset to be divided according to the will.
  • She may also argue that because she is on the deed of the new 500k property, that she now owns that portion of the property.
• Your Perspective:
  • You're arguing that the £200,000 used for the property purchase effectively constituted a pre-inheritance distribution to your sister.
  • You believe the remaining £200,000 should be divided equally, correcting the imbalance.
  • You are concerned that your sister has received 3 times the amount that you will receive.
• Legal Considerations:
  • The legality of your sister's actions as POA is crucial. Did she act within her authority and in your mother's best interests?
  • The interpretation of the will is paramount. Does it address situations like this, or is it a simple equal division?
  • If the £200,000 was used inappropriately, it could be considered a breach of fiduciary duty.
  • The property deeds will be very important in determining who owns what percentage of the new 500k property.

Possible Outcomes and Recommendations:

• Mediation: A neutral third party could help you and your sister reach a fair agreement.
• Legal advice: Consulting an estate lawyer is essential. They can:
  • Advise on the legality of your sister's actions as POA.
  • Interpret the will and applicable laws.
  • Help you understand your rights and options.
  • Help you to understand the property deeds.
• Accounting: A full accounting of all transactions related to the sale and purchase of the properties is needed. This will provide a clear picture of how the funds were used.
• Consider the mothers best interest: Even though she has passed, it is important to consider what her wishes would have been.

Key Points to Emphasize:

• The importance of transparency and accountability in estate administration.
• The potential for conflicts of interest when a POA is also a beneficiary.
• The need for clear legal advice to ensure a fair and equitable distribution of assets.

It is strongly advised that you seek legal advice from a solicitor that specialises in probate and power of attorney.

elsien

I’m not so sure that you can definitively say on the information given that your sister overstepped the bounds of the power of attorney.

It depends on the level of your mother’s dementia because she may still have had capacity to make some financial decisions. 

And if she was otherwise in reasonable health and there was an expectation that she would carry on living for a lot longer than putting that money in for 10 years worth of care at home would have been a worthwhile investment. The fact that she passed away more quickly than expected doesn’t change that. 

I understand why you are suspicious. I would be too. But there’s a lot more that needs digging into first. 

And of course what is legal, and is considered to be the right thing to do, may be two different things.