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Raise a will to respect repect my Mum's wishes

including wills and probate
AsleepInYorkshire
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Raise a will to respect repect my Mum's wishes

#409091

Postby AsleepInYorkshire » May 3rd, 2021, 8:16 pm

Today we learned the unfortunate news that my 80 year old Mum's lung cancer is terminal. We don't have timelines. She has asked that her will is taken care of and during the week my good lady will be appointed power of attorney.

She has two children. Me and my sister who lives in Australia, having done so for 33 years now. My cousin has lived with my Mum for about 25 years. He works locally and has friends too. My sister has five children.

My Mum would like to leave the following will. She has some cash (I don't know how much but it's not going to be anymore than about £15K). She has a small home which she owns outright in her name. Value £180K.

She would like to leave her home to my 14 year old daughter on the premise that my cousin is allowed to live in the home rent free until he passes or leaves. He's 60. He's a kind person who keeps himself to himself, was always kind to my Dad before he passed away 30 years ago, looks after his Mum who lives alone 30 miles away and has obviously done much for Mum too. It's right that his interests are up front and centre. Upon his passing/leaving my daughter will be able to sell the home and she will be required to split the proceeds between my Mum's 6 grandchildren. The split will be unproportionate. In other words the bulk of the value of the home will go to my daughter. The other grandchildren will be given a nominal sum. I don't know anymore detail than that. I've told my Mum I will pay for the will and the other paperwork she needs to put in place.

The purpose of my post is really to ask if anyone knows if we can raise a will respecting my Mum's wishes or would it be a will that could be challenged. And my agenda is simple. To carry out my Dad's wishes made some 30 years ago to look after my Mum. There's nothing in it for me, not that I need anything. My Mum does not want my sister to have anything other than the small mount of cash she has.

I'd welcome any advice please.

Thank you in advance.

AiY

Moderator Message:
This topic has been given its own thread. - Chris
Last edited by csearle on May 4th, 2021, 7:14 am, edited 1 time in total.

Lootman
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Re: Raise a will to respect repect my Mum's wishes

#409093

Postby Lootman » May 3rd, 2021, 8:25 pm

AsleepInYorkshire wrote:Today we learned the unfortunate news that my 80 year old Mum's lung cancer is terminal. We don't have timelines. She has asked that her will is taken care of and during the week my good lady will be appointed power of attorney.

The purpose of my post is really to ask if anyone knows if we can raise a will respecting my Mum's wishes or would it be a will that could be challenged.

One thing to bear in mind is that, given your mother's medical condition, it is quite possible that she is on medication that might render her will invalid on the grounds of not being of sound mind. In my days of working in a heart-lung hospital I would occasionally be asked to witness a patient writing a new will. The first thing I would do is ask the presiding doctor what medications the patient was on. If it included an opiate, as it often did, then I would not witness the will.

Regarding the power of attorney, that will expire at the point of death and so is only valid until then. So if you are going to use it to collect and move assets, be quick.
Last edited by Lootman on May 3rd, 2021, 8:39 pm, edited 1 time in total.

genou
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Re: Raise a will to respect repect my Mum's wishes

#409095

Postby genou » May 3rd, 2021, 8:38 pm

AsleepInYorkshire wrote:She would like to leave her home to my 14 year old daughter on the premise that my cousin is allowed to live in the home rent free until he passes or leaves. He's 60. He's a kind person who keeps himself to himself, was always kind to my Dad before he passed away 30 years ago, looks after his Mum who lives alone 30 miles away and has obviously done much for Mum too. It's right that his interests are up front and centre.
Thank you in advance.

AiY


My sympathies. Your cousin seems worth cherishing. I see no meaningful challenge from any of the beneficiaries. I would take care that your cousin is allowed to move house, but using your mother's capital to do so, on the basis that any replacement home falls into the will in same way as the existing house. You will need a trust to achieve this. You will also have to consider who is responsible for the maintenance of the the house(s) during your cousin's life ( I believe we have been here before on a thread about looking after a younger spouse, but I'm damned if I know how to find that thread ).

AsleepInYorkshire
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Re: Raise a will to respect repect my Mum's wishes

#409096

Postby AsleepInYorkshire » May 3rd, 2021, 8:39 pm

Lootman wrote:
AsleepInYorkshire wrote:Today we learned the unfortunate news that my 80 year old Mum's lung cancer is terminal. We don't have timelines. She has asked that her will is taken care of and during the week my good lady will be appointed power of attorney.

The purpose of my post is really to ask if anyone knows if we can raise a will respecting my Mum's wishes or would it be a will that could be challenged.

One thing to bear in mind is that, given your mother's medical condition, it is quite possible that she is on medication that might render her will invalid on the grounds of not being of sound mind. In my days of working in a heart-lung hospital I would occasionally be asked to witness a patient writing a new will. The first thing I would do is ask the presiding doctor what medications the patient was on. If it included an opiate, as it often did, then I would not witness the will.

Regarding the power of attorney, that will expire at the point of death and so is only valid until then.

Thank you. She is sound of mind currently. She is on medication for 1st stage breast cancer, but the lung cancer was reassessed two weeks ago with a scan ahead of what was supposed to be a routine operation for a partial removal of one of her lungs. However, I take on board your comments and will ensure the will is only made if she is considered sound of mind. The power of attorney will allow my good lady to talk to Mums bank and others as Mum's abilities become limited. My cousin is a good person, but realistically is not the best choice for the role.

Thank you

AiY

AsleepInYorkshire
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Re: Raise a will to respect repect my Mum's wishes

#409100

Postby AsleepInYorkshire » May 3rd, 2021, 8:54 pm

genou wrote:
AsleepInYorkshire wrote:She would like to leave her home to my 14 year old daughter on the premise that my cousin is allowed to live in the home rent free until he passes or leaves. He's 60. He's a kind person who keeps himself to himself, was always kind to my Dad before he passed away 30 years ago, looks after his Mum who lives alone 30 miles away and has obviously done much for Mum too. It's right that his interests are up front and centre.
Thank you in advance.

AiY


My sympathies. Your cousin seems worth cherishing. I see no meaningful challenge from any of the beneficiaries. I would take care that your cousin is allowed to move house, but using your mother's capital to do so, on the basis that any replacement home falls into the will in same way as the existing house. You will need a trust to achieve this. You will also have to consider who is responsible for the maintenance of the the house(s) during your cousin's life ( I believe we have been here before on a thread about looking after a younger spouse, but I'm damned if I know how to find that thread ).

Thank you. My cousin is a genuine person but is probably better for knowing. He's been a source of company for my Mum and has been there for her when my illness prevented. He has sufficient funds to maintain the home and is aware of what my Mum wants. He could go home to live with his Mum but that would mean he would leave all his friends behind and I'm not sure that's what any of us want. My Mum is aware of her children's strengths and weakness'. She knows I will carry out her wishes and ensure the practical side is taken care of. However, she does not want my sister to return home from Australia at all as she fears she will stay in the home and not leave it. Regrettably that's not a possibility I can rule out as far as my sister is concerned. She's very interested in money and will attempt to acquire it if he feels she has an entitlement.

My Mum is actually carrying out my Dad's wishes which he left in a letter he wrote to me just before he died. That was to see that the grandchildren got looked after on her passing.

Thank you for your advice, I appreciate the time you have taken to help.

AiY

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Re: Raise a will to respect repect my Mum's wishes

#409111

Postby genou » May 3rd, 2021, 9:28 pm

AsleepInYorkshire wrote:
genou wrote:
AsleepInYorkshire wrote:She would like to leave her home to my 14 year old daughter on the premise that my cousin is allowed to live in the home rent free until he passes or leaves. He's 60. He's a kind person who keeps himself to himself, was always kind to my Dad before he passed away 30 years ago, looks after his Mum who lives alone 30 miles away and has obviously done much for Mum too. It's right that his interests are up front and centre.
Thank you in advance.

AiY


My sympathies. Your cousin seems worth cherishing. I see no meaningful challenge from any of the beneficiaries. I would take care that your cousin is allowed to move house, but using your mother's capital to do so, on the basis that any replacement home falls into the will in same way as the existing house. You will need a trust to achieve this. You will also have to consider who is responsible for the maintenance of the the house(s) during your cousin's life ( I believe we have been here before on a thread about looking after a younger spouse, but I'm damned if I know how to find that thread ).

Thank you. My cousin is a genuine person but is probably better for knowing. He's been a source of company for my Mum and has been there for her when my illness prevented. He has sufficient funds to maintain the home and is aware of what my Mum wants. He could go home to live with his Mum but that would mean he would leave all his friends behind and I'm not sure that's what any of us want. My Mum is aware of her children's strengths and weakness'. She knows I will carry out her wishes and ensure the practical side is taken care of. However, she does not want my sister to return home from Australia at all as she fears she will stay in the home and not leave it. Regrettably that's not a possibility I can rule out as far as my sister is concerned. She's very interested in money and will attempt to acquire it if he feels she has an entitlement.

My Mum is actually carrying out my Dad's wishes which he left in a letter he wrote to me just before he died. That was to see that the grandchildren got looked after on her passing.

Thank you for your advice, I appreciate the time you have taken to help.

AiY

If there is a real risk your sister will come back, then that is more support for a proper trust, which would not merely allow your cousin to stay in the house, but ensure that he had exclusive right to occupy. If nothing else, it's something you can wave at her before she gets on a plane. It would also allow your mother to allocate the dispersal to the grandchildren in whatever shares she wished.

AsleepInYorkshire
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Re: Raise a will to respect repect my Mum's wishes

#409120

Postby AsleepInYorkshire » May 3rd, 2021, 9:46 pm

genou wrote:
AsleepInYorkshire wrote:
genou wrote:
My sympathies. Your cousin seems worth cherishing. I see no meaningful challenge from any of the beneficiaries. I would take care that your cousin is allowed to move house, but using your mother's capital to do so, on the basis that any replacement home falls into the will in same way as the existing house. You will need a trust to achieve this. You will also have to consider who is responsible for the maintenance of the the house(s) during your cousin's life ( I believe we have been here before on a thread about looking after a younger spouse, but I'm damned if I know how to find that thread ).

Thank you. My cousin is a genuine person but is probably better for knowing. He's been a source of company for my Mum and has been there for her when my illness prevented. He has sufficient funds to maintain the home and is aware of what my Mum wants. He could go home to live with his Mum but that would mean he would leave all his friends behind and I'm not sure that's what any of us want. My Mum is aware of her children's strengths and weakness'. She knows I will carry out her wishes and ensure the practical side is taken care of. However, she does not want my sister to return home from Australia at all as she fears she will stay in the home and not leave it. Regrettably that's not a possibility I can rule out as far as my sister is concerned. She's very interested in money and will attempt to acquire it if he feels she has an entitlement.

My Mum is actually carrying out my Dad's wishes which he left in a letter he wrote to me just before he died. That was to see that the grandchildren got looked after on her passing.

Thank you for your advice, I appreciate the time you have taken to help.

AiY

If there is a real risk your sister will come back, then that is more support for a proper trust, which would not merely allow your cousin to stay in the house, but ensure that he had exclusive right to occupy. If nothing else, it's something you can wave at her before she gets on a plane. It would also allow your mother to allocate the dispersal to the grandchildren in whatever shares she wished.

Ah ... yes ... sorry I didn't quite pick that up too well on your last post. Yes. I'm afraid we aren't dealing with someone who will pay any regard to anyone's wishes or feelings except her own. Thank you for spotting I hadn't quite heard you and I think you have an excellent point. I want my Mum's wishes to be those that come to fruition. I have discussed with her that she should share the home equally between the grandchildren. She doesn't want that to happen as she feels she simply doesn't know them. Also four are much older than my daughter and have children of their own and Mum has given them some financial support before now.

Thank you for your patience and persistence, I genuinely grateful

AiY

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Re: Raise a will to respect repect my Mum's wishes

#409126

Postby Lanark » May 3rd, 2021, 10:36 pm

AsleepInYorkshire wrote:She would like to leave her home to my 14 year old daughter on the premise that my cousin is allowed to live in the home rent free until he passes or leaves. He's 60. He's a kind person who keeps himself to himself, was always kind to my Dad before he passed away 30 years ago, looks after his Mum who lives alone 30 miles away and has obviously done much for Mum too. It's right that his interests are up front and centre.

Upon his passing/leaving my daughter will be able to sell the home and she will be required to split the proceeds between my Mum's 6 grandchildren.

Questions like this have come up before and this kind of arrangement is almost always a bad idea. The people involved may all be on great terms right now but it's amazing how people can change when faced with the prospect of a significant windfall.

Either leave them the house/money or don't, trying to dictate what they get to do with an inheritance in 10 or 20 years time is trying to predict the future. If you leave it in a trust managed by a lawyer, they will bleed you dry with annual changes for doing nothing, if you leave it in a trust which the daughter controls then she can use that power to force the cousin to move out - "Oh you are responsible for repairs and upkeep, well the trust has decided you need a swimming pool installed, oh you cant afford that, well guess you'll just have to move out then!".
If you make the daughter responsible for repairs, that isn't any better, she could have no assets and regular repair bills arriving for the next 40 years, what if she cant afford it?
The whole thing is a recipe for lawsuits and a massive family fallout. Far better to just sell the house and split the proceeds 40:40:20 or whatever proportions seem right.
I think a lot of people would prefer 40% of a house than 80% with a bunch of strings attached. Particularly for the daughter, that may enable her to buy a house 10 or 20 years earlier.

The cousin might also decide to leave the daughter something in his will in 30 odd years time, but that's really up to him.

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Re: Raise a will to respect repect my Mum's wishes

#409138

Postby Clitheroekid » May 4th, 2021, 1:27 am

Firstly, my sympathies for the news about your Mum.

There are a number of points that I think you and she need to consider, some of them being as follows:

during the week my good lady will be appointed power of attorney.

Assuming you’re intending a Lasting Power of Attorney, bear in mind that these are currently taking a couple of months to register, and can’t be used until they are registered. I don’t know whether or not there’s any urgency, but if there is it might be worth considering an ordinary Power of Attorney that doesn’t need registering. This is an extremely simple, one page document, and it could, if needed, be used pending registration of the LPA.

Your Mum needs to consider who to appoint as executors / trustees. If she goes ahead as planned then there is going to be a trust that could easily exist for 30 years or more until the cousin dies.

This is going to be quite an onerous task, which is why the beneficiaries of a Will are often appointed as executors, having a vested interest in getting the job done. However, your daughter can’t be appointed, as she’s too young, and the cousin clearly isn’t appropriate either.

Of the available choices you would seem to be an obvious choice, but as there is a minority interest (your daughter) there will have to be at least two trustees. Your sister wouldn’t be appropriate, not only because she lives in Australia but because it seems likely there would be conflict.

She would like to leave her home to my 14 year old daughter on the premise that my cousin is allowed to live in the home rent free until he passes or leaves. He's 60.

This is possible, but as others have warned, such life interests are often problematical, especially where they might last 30 years or so, as in this case. The normal arrangement is to make the life tenant (the cousin in this case) responsible for maintaining and insuring the house, but there are often arguments about major items of expenditure, such as an extension / a new heating system / a new kitchen or bathroom, which add significant value to the house and are far more than just maintenance.

It may go without saying that the longer the term of the life tenancy the greater the scope for such arguments.

Your Mum also needs to consider the trigger events for the cousin to vacate other than his death. What happens, for example, if he goes into care, but it’s not clear whether it’ll be permanent or not, or if he starts to cohabit with someone – does your Mum want to provide lifelong accommodation for his partner as well? Or he may go on holiday to sunny Spain and just stay there indefinitely – should that mean he loses the right to live in the house, and if so how will you define these events in the Will?

Your mother therefore needs to give very careful thought to this.

There are also various alternatives that she might consider, such as limiting the period of occupation until say, your daughter reaches 18, or to a fixed term, such as 5 or 10 years. She could also give him the option of buying the house at a hefty discount for a period of, say, a year after her death.

But overall, I think it would probably be better to give him perhaps a year’s rent free occupation, which would give him time to sort something else out, and a decent cash legacy that he could perhaps use towards finding somewhere else.

The purpose of my post is really to ask if anyone knows if we can raise a will respecting my Mum's wishes or would it be a will that could be challenged.

You can certainly produce a Will that reflects your Mum’s wishes. Whether it would be sensible to do so is another matter.

Likewise, any Will can be challenged. The object of the exercise is to try to make sure that it wouldn’t be worth anyone challenging it. However, in this case it seems that the biggest threat by far would be from the cousin.

This is because although he’s not `cohabiting’ with your Mum, and is not therefore within one of the defined categories of claimants, he may well be able to demonstrate a degree of financial dependency on her. If he’s living in her house rent-free then that would almost certainly amount to being `maintained’ by her for the purposes of the 1975 Act, and would provide a strong basis for a claim.

Consequently, even if your Mum wasn't inclined to provide for him I would have advised her to do so, simply to avoid a claim. In fact, had the relationship not been a close one (which it evidently is) it would have been an ideal candidate for a `no contest' clause!

It’s obviously a very delicate situation, and although I can appreciate that your Mum would probably not want to involve the cousin in a discussion about what he wants after her death it may save a lot of problems in the long run if such a discussion were to take place.

AsleepInYorkshire
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Re: Raise a will to respect repect my Mum's wishes

#409247

Postby AsleepInYorkshire » May 4th, 2021, 1:51 pm

Thank you all for your support, thoughts and advice. On occasions like this I think the ultimate strength of this small oasis in the ether comes to the fore.

There's a lot to mull over and a huge amount to digest.

My cousin is a very simple person. He won't marry or cohabit. He really does enjoy his own company and there's nothing strange about that. He is my largest concern after Mum passes as he will be living alone. He has friends locally and is very active with sea fishing and shooting at weekends. He has recently had to give up his job as he was diagnosed with a condition that precluded the kind of work he does. I'm not sure if he's looking for other work or proposes to live off his own assets, which I have no idea what they are.

I will speak with him tonight.

Thank you again

AiY


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