This story is about a couple called Mick and Brenda who celebrated their 50th Golden Wedding Anniversary in 2008 and the circumstances that occurred thereafter. Sadly, their story and their situation still happen every day.
However, the problems could be easily avoided.
Mick said to Brenda ‘When we get to the end of our lives together, the houses we owned, the cars we drove, all the possessions that we have won’t matter. All that will ever matter is that I loved you and you loved me’.
Mick wasn’t a mean man but had always been very careful with his money. His philosophy had always been ‘money is hard earned and should be spent wisely’.
Mick and Brenda had made Wills; Mick bought two DIY wills from W H Smith in January 2009 (a new year’s resolution).
When they had completed them, Mick deposited the Wills with his Bank later that same month. Sadly, a year after making the Wills (2010), Brenda was diagnosed with Dementia, Mick had been looking after Brenda on his own ever since, he didn’t involve any carers, although Brenda’s GP was well aware of Brenda’s condition as her medication and condition were under regular reviews.
One cold February morning in 2015 a neighbour found Brenda walking down the street wearing only her dressing gown and slippers. The neighbour, who also knew that Brenda suffered from Dementia, took her home straight away to find out how she had got out of the house and to see where Mick was. The neighbour (Sheila) found that 85-year-old Mick had died in his bed.
Sheila rang the emergency services straight away, then rang Mick and Brenda’s GP. Sheila then found the telephone number for Brenda’s daughter (Susan) and told her the sad news. Sheila stayed with Brenda until Susan arrived. The emergency services also waited until the GP arrived before leaving, there was nothing that they could do, and the Police didn’t suspect anything suspicious surrounding Mick’s death.
Susan arrived at Mick and Brenda’s home at the same time as the GP, Susan had already contacted her two brothers (Keith and David), who were also on route.
Brenda was in a very confused state and didn’t understand what was going on, in fact she didn’t even recognise Susan when she arrived, and neither did she recognise her two sons when they arrived about an hour later.
Mick & Brenda’s GP confirmed that poor Mick had indeed died and the possible cause was a heart attack whilst in his sleep, he informed the family that it was likely that a post mortem would have to be done.
The GP contacted Social Services to discuss and arrange immediate care for Brenda, because in the GPs opinion Brenda now needed 24-hour professional nursing care due to her progressed Dementia condition.
Mrs Simpson a Social Worker arrived later that afternoon shortly after Mick’s body was taken away by the undertakers, Mrs Simpson explained that Social Services are empowered by the Court of Protection, and that she had done her best and succeeded to find Brenda a place in a residential nursing home.
The problem was, it was a long distance away from the family, and despite the protests and objections from Susan, David and Keith she was placed in a nursing home that was 60 miles away from Susan and even further away from Keith and David.
Even though they made their dissatisfaction very clear Mrs Simpson advised Susan and her brothers that because the family did not have a Lasting Power of Attorney Health & Welfare in place, then this meant that they did not have any power or any legal say in Brenda’s future care, placement or treatment.
Mrs Simpson also went onto say that the family would have to apply to the Court of Protection to have any involvement in Brenda’s future wellbeing and financial affairs. In the meantime, Social Services and the Court of Protection would have to be in charge of these areas on Brenda’s behalf.
The children went to a local solicitor around one week after Mick’s funeral; they managed to get Brenda out of the nursing home for the funeral, but she was very confused and didn’t recognise anyone, she didn’t understand what was going on, Brenda also kept asking where Mick was, and that he was late for his tea and if he didn’t come soon it would be ruined!
They didn’t bother asking for permission from Social Services for Brenda to attend the Solicitors meeting, as they knew she wouldn’t understand what it was all about anyway.
The children explained the situation to the Solicitor. All parties mutually agreed that they should apply to the court of protection for a deputyship to the court, so that the children could become deputies on behalf of the court and have some input in the decision-making process as regards Brenda’s future wellbeing and help deal with the financial side of things on her behalf and on the court’s behalf.
The children also mutually agreed at the Solicitors meeting, that the solicitor should also start the probate process on their late father’s estate.
The solicitor advised the family that the Court Deputyship application fees would cost in the region of £1,000 + further disbursements, the Solicitor also explained that there would be his firm’s fees on top of this, which would be around a further £1,900 + vat.
The solicitor also warned the family that the Court application would take around 8 – 12 months to complete, if accepted as deputies, he also went on to confirm that Brenda’s care was in the hands of Social Services and the court of protection until (hopefully) they would be appointed and accepted as deputies to the court.
The solicitor informed the family of his approximate probate fees on their late father’s estate, he told them that their firms probate fees would be in the region of 3-5% of the Estate value plus disbursements.
Two weeks later the solicitor contacted Susan to arrange for a further family meeting after making some discoveries regarding Mick’s Will.
At this meeting, the solicitor informed the family that Mick had made some very serious errors in his DIY will. The solicitor informed them that the Will would fail because it had not been Attested correctly (signed and witnessed), and not even dated!
This meant that Mick had died Intestate and that his estate would pass via the UK’s Rules of Intestacy. Also, the solicitor stated that Brenda’s will had the same errors and that she too would die intestate, and due to her health condition (lack of mental capacity), nothing can be done.
The solicitor went onto to advise the family that ‘unfortunately, your mother will now receive around ¾ of the estate, and you, will inherit between you around a ¼, which is not ideal as your mother is in no fit mental state to look after her own financial affairs’. He also went onto say ‘and you cannot look after her affairs as you do not have Lasting Power of Attorney’.
The solicitor also mentioned that he had found a hand-written note from Mick along with the Will where Keith had been given £50,000 six years ago, by Mick, but there was no mention on the note about any repayment terms. The solicitor said that ‘I am at a loss as to what your father intended to do in the future as regards this gift or loan to Keith, or whether it was to be forgotten about’?
David and Susan were unaware of this fact, and quite clearly, were shocked by this news; Keith said that his Dad had helped him out due to money problems, and he also went on to say, ‘Dad told me that I would still have an equal share of the estate when Dad and Mum died, just the same as my sister and brother, despite being given the £50,000’.
David and Susan were not happy with this situation and didn’t believe that their father would have told Keith any such thing. They both said ‘why should you receive £50,000 more than us’?
The inevitable happened, the three of them started arguing in the solicitor’s office. The solicitor sat back with his head in his hands and said to himself ‘and here begins the family feud that will last their lifetime’.
Also, to make matters even worse, as the majority of the estate is now going to be owned by Brenda, then most of the estate proceeds (less £14,500) is likely to disappear in legal and Care Costs (including the family home).
Brenda is now the sole owner of the property as it was owned as Joint Tenants, and so with legal ownership passing to the last survivor, then Brenda becomes the sole owner of their home, an asset that will be taken under consideration towards the payment of her Care Costs.
If Mick had not to be so careful with his money and had taken professional advice, then his share of the estate could have been protected for his children, without disadvantaging Brenda.
The gift that he made to Keith (£50,000) could have been properly drawn up as a Deed of Gift and allowances made in his Will so that Susan and David were not disadvantaged.
If Mick had taken some advice then there would probably be Lasting Powers of Attorney in place so that the Children would have been the legal Attorneys to Brenda, and thus avoiding any involvement from Social Services and The Court of Protection. This would have also saved the expense of the court and the solicitor’s fees as regards the Court Deputy application process.
Through not seeking professional advice, Mick has put his entire estate value at risk, and caused a family feud that would go on forever.
Depending upon the value of the estate, there could also be unnecessary taxes to pay, such as Inheritance tax, Keith may have pay 40% tax on the £50,000 that he received from Mick.
Keith may also have to pay back the £50,000 to the Local Authority who is responsible for Brenda’s care, and who are also responsible for finding the funding for her care. If Keith cannot prove that the gift was not given to him to deliberately to deprive the Local Authorities of the £50,000 then he would have to refund the monies, which would then go towards the payment of Brenda’s Long-Term Care requirements.
The entire estate less one quarter is at risk of being depleted in value by legal costs and court fees, the Local Authority can legally take all of Brenda’s estate less £14,500.
Like many people, Mick would have had no idea of the problems that can be caused with a homemade Will. Mick would never have given it a second thought that should Brenda have to go into care that Social Services would overrule his family.
Being as careful with money as he was, he couldn’t have realised the possibility of Brenda’s care costs reducing the family estate value by £60,000 per year.
If Mick had taken professional advice then, on the day that he died his share of the family home could have been protected by a trust for his children.
If an Inheritance Tax liability existed, then this could have been reduced or even eliminated by a carefully drafted Will. All these things could have been done at a fraction of the cost that his estate is now going to face, such as Legal Fees, Court Fees and Care Costs.
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