Change to Will, possible Deprivation of assets or other implications

Keep_pedalling

arthur_fowler said:

Keep_pedalling said:

No it won’t be considered deliberate deprivation of assets, but I don’t think it is in your MILs best interests if she survives in care more than a couple of years and starts to run out of money to continue self fund. These are after all marital assets 

Does FIL still have all of his mental faculties? Are they both claiming attendance allowance?

FiL does have mental faculties yes. 

I don't know if they are claiming attendance allowance. 

Your point about her funding running out is a valid one. She had a major stroke and is bed bound, no movement and very little speech or ability to recognise or respond to interactions. Over recent months her condition has further deteriorated. The likelihood of her surviving long is limited. Of course this argument I have just made erodes the value of changing FiLs will.

It sounds unlikely that she would run out of money if she has access to half the proceeds of the house so I really don’t think it worth your FIL changing his will, especially as it it likely to require conversations with him that he may well find upsetting.

Please check to see if they are claiming attendance allowance, if not it something that should be applied for and will help with care fees.

Does anyone hold power of attorney for her? If not that makes selling the house impossible without applying for deputyship. 

arthur_fowler

Keep_pedalling said:

arthur_fowler said:

Keep_pedalling said:

No it won’t be considered deliberate deprivation of assets, but I don’t think it is in your MILs best interests if she survives in care more than a couple of years and starts to run out of money to continue self fund. These are after all marital assets 

Does FIL still have all of his mental faculties? Are they both claiming attendance allowance?

FiL does have mental faculties yes. 

I don't know if they are claiming attendance allowance. 

Your point about her funding running out is a valid one. She had a major stroke and is bed bound, no movement and very little speech or ability to recognise or respond to interactions. Over recent months her condition has further deteriorated. The likelihood of her surviving long is limited. Of course this argument I have just made erodes the value of changing FiLs will.

It sounds unlikely that she would run out of money if she has access to half the proceeds of the house so I really don’t think it worth your FIL changing his will, especially as it it likely to require conversations with him that he may well find upsetting.

Please check to see if they are claiming attendance allowance, if not it something that should be applied for and will help with care fees.

Does anyone hold power of attorney for her? If not that makes selling the house impossible without applying for deputyship. 

Thanks for your considered reply. I agree about the difficult conversations and as their children aren't that concerned about the money (they would rather it went to family rather than council or government tax), it may not be appropriate to go down that route.

My wife has Financial PoA for them both.

Will check on attendance allowance. Thanks.

itsthelittlethings

Query - can you inherit if you don’t have mental capacity?

itsthelittlethings

Also I just realised - why are you bothering to change the will when, to be gentle, your mother in law is likely to predeceace your father in law? You’d rather give money to solicitors than a tiny risk of paying tax?

bobster2

arthur_fowler said:

bobster2 said:

It's not "deprivation of assets" that's a concern. If FIL leaves nothing for his wife in his will then it's the Inheritance (Provision for Family & Dependants) Act 1975 that could be an issue.

However, if she gets half the proceeds of the house sale - either because it's sold soon and the proceeds split. Or because they are tenants in common and she has her half to fund her care after FIL passes away. Then failure to provide for a dependent may not be a problem.

Thank you, that's not an area I have ever heard of. So it sounds like MiL could make a claim that she hasn't been adequately included in his will. From the limited amount I have read, it's not something that the a third party (council) could claim nor is it a legal matter, but rather a basis for someone to challenge the will (which wouldn't be the case here). Does that sound right?

You are suggesting that your FiL would write a new will leaving everything to his children and nothing to his wife. This act would be a means by which the provisions of that new will could be challenged - because it makes no provision for his wife.

In certain circumstances a local authority could bring a claim on behalf of your MiL. However, if she has half the equity from the house - then I think this would be very unlikely. As she has that equity from the house to fund her care.

bobster2

arthur_fowler said:

Thanks for your considered reply. I agree about the difficult conversations and as their children aren't that concerned about the money (they would rather it went to family rather than council or government tax), it may not be appropriate to go down that route.

Money that is used to fund someone's care does not "go to the council". It funds their care. The council could be involved in making the arrangements - but ultimately the money is being used for their benefit.

Keep_pedalling

bobster2 said:

arthur_fowler said:

Thanks for your considered reply. I agree about the difficult conversations and as their children aren't that concerned about the money (they would rather it went to family rather than council or government tax), it may not be appropriate to go down that route.

Money that is used to fund someone's care does not "go to the council". It funds their care. The council could be involved in making the arrangements - but ultimately the money is being used for their benefit.

In addition to that if you can self fund the LA do not need to be involved at all, the family can make their own private arrangements. 

Keep_pedalling

itsthelittlethings said:

Query - can you inherit if you don’t have mental capacity?

Yes you can. 

arthur_fowler

itsthelittlethings said:

Also I just realised - why are you bothering to change the will when, to be gentle, your mother in law is likely to predeceace your father in law? You’d rather give money to solicitors than a tiny risk of paying tax?

At the moment they are both deteriorating quite fast. We don't know who will go first. 

arthur_fowler

bobster2 said:

arthur_fowler said:

Thanks for your considered reply. I agree about the difficult conversations and as their children aren't that concerned about the money (they would rather it went to family rather than council or government tax), it may not be appropriate to go down that route.

Money that is used to fund someone's care does not "go to the council". It funds their care. The council could be involved in making the arrangements - but ultimately the money is being used for their benefit.

The idea would be that if MiL outlives FiL, when her own money runs down from the sale of their house, funding her ongoing care home would then be funded by social services.