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Wills and Elderly Parents

(28 Posts)
TeenTimesTwo Sat 18-Nov-17 21:24:41

My parents want to update their wills and would like to know a couple of things:

1) Is there an age at which solicitors are expected to ask for proof they are of sound mind, or is clearly understanding what they are asking for and why sufficient? The first solicitor they contacted wants a doctors note, but their doctor is newish and has never met them...

2) Dad doesn't like charities who take people to court re challenging wills. He wants a clause saying if any charity they leave bequests to tries taking legal action to get more, then they get nothing. Is that at all feasible?

MyBrilliantDisguise Sat 18-Nov-17 21:27:35

I don't think charities take anyone to court wanting more money. They (apparently) are brutal if eg a house isn't sold quickly enough.

Why doesn't your dad ask his benefactors to make a contribution to a charity in his name when everything's cleared?

Is there anyone likely to challenge the Will? If eg he's left someone out who might complain, then he might be better getting a doctor's note to show he has never needed treatment for dementia. Or he could leave that person a small amount with an explanation as to why.

TeenTimesTwo Sat 18-Nov-17 21:31:47

No one will challenge it, there are a few bequests then it is split between my and my DB, but 10% of everything IHT is payable on is going to various smallish charities, so that would include proceeds of house sale.

MyBrilliantDisguise Sat 18-Nov-17 21:39:44

Perhaps your dad could include something like "I'm leaving £X to X on condition they wait until NAME and NAME are ready to sell the house and release the funds." Could that be done?

I wrote my Will with the help of @mumblechum01 (I think that's her name here - it might be @mumblechums01) and she was absolutely brilliant. I'm sure she'd give advice.

thesandwich Sat 18-Nov-17 21:41:54

Another vote for mumblechum at Marlow wills. She gives great advice.

TeenTimesTwo Sat 18-Nov-17 21:47:03

It's more that I don't want Dad having an argument with the solicitor if they tell him what he wants isn't remotely possible or that the law society or someone says that over age X you have to have a doctors certificate.

I like your suggestion Disguise re the condition wrt house sale.

They will want to do this face to face with a local solicitor.

MyBrilliantDisguise Sat 18-Nov-17 22:53:45

How old are they?

TeenTimesTwo Sun 19-Nov-17 07:39:56

80s, very with it still..

Vitalogy Sun 19-Nov-17 07:50:57

Even if the doctor hasn't met your dad, from his medical records they can still confirm he's in sound mind surely. Plus he could make an appointment to see the doctor as well.

MrsBertBibby Sun 19-Nov-17 08:30:06

The solicitor is suggesting getting proof of capacity to ensure your dad's will is valid and watertight.

And the Blue Cross case happened because the charities were getting the whole estate, the daughter took it to court, and the mum's will had specifically unrequited the charities to fight her all the way.

A charity isn't going to do that if he gives a specific amount.

Your dad sounds like quite hard work, has he always been this argumentative? Because that in itself can be a bit of a warning sign that capacity might be an issue.

MrsBertBibby Sun 19-Nov-17 08:31:12

Required, not unrequited.

TeenTimesTwo Sun 19-Nov-17 08:41:16

He hasn't changed, strong minded, not argumentative as such. Capacity definitely isn't an issue. I think he might partly see it as a bit of an affront that anyone would dare even think it might be an issue!

He doesn't like wasting money (war generation)(e.g. having to pay for a doctors note proving capacity), and certainly wouldn't want fees being wasted on solicitors fighting charities. Your explanation of the Blue Cross case makes it a bit clearer.

MrsBertBibby Sun 19-Nov-17 09:16:50

No one really likes wasting money, though, and solicitors are painfully aware that a)We are really expensive, and b) people want to spend as little on us as possible.

We don't tend to spend our client's money without good reason. But clients can often send their own bills through the roof by querying every little thing, arguing the toss, and generally behaving as if the fact they don't want to be overcharged is some kind of news the solicitor needs telling, daily.

If they don't trust the lawyer, find one they do trust, and then let them do their job. Spending £50 now to get evidence of capacity can save £50K in fighting over the same issue after your father is gone. It really is that simple.

TeenTimesTwo Sun 19-Nov-17 10:06:47

MrsBert Just to summarise what you are saying:

- there isn't a 'rule' re proving capacity after a certain age, but for elderly people it is considered good practice?

- And re charities, they really aren't as litigious as the papers can make it seem and would really only go to court with very good reason and trying to put in a clause about it would be OTT?

I just want to put their mind at rest really. smile

I know solicitors should be trustworthy, but their old one has retired so they are starting from fresh which is making them a bit more cautious.

kath6144 Sun 19-Nov-17 16:40:50

I think I would be wondering why capacity needs to be proved, unless there is a possibility of the will being challenged? As pp said, is there anyone being left out of will, or is it just a straight split being you and your DB, after some bequests? How different is it from their existing will?

As for charities, I can't see them taking the estate to court, why would they? If they start doing that then no one will leave any charity bequests in wills!!

TeenTimesTwo Sun 19-Nov-17 16:50:20

No one's being left out, only big change is leaving stuff to the charities. I think Dad has been spooked by a couple of high profile cases in the papers re charities contesting wills / saying they haven't been given full amount due.

I'm going to ring a couple of other solicitors local to them to see if they say the same stuff, to reassure my parents. To be honest, I really think that any solicitor talking to them for 5 minutes would be able to tell they know exactly what is going on.

prh47bridge Sun 19-Nov-17 21:20:07

There is no basis in law on which a charity can challenge a will to demand a bigger bequest. They can get involved, as in the Blue Cross case, to try to ensure the will is upheld when someone challenges it in a way that will reduce the amount left to the charity. They can also get involved if the executor is mis-managing the estate in such a way that the charity won't get as much as it should.

If your father leaves, say, £1,000 to charity X there is no legal basis on which they can demand any more than that. As long as the executor pays the charity their £1,000 there won't be any problems.

specialsubject Mon 20-Nov-17 08:45:51

....if that £1000 is there!!

Don't leave money to charities in wills like that. Leave as percentage of residue after all costs met.

prh47bridge Mon 20-Nov-17 12:40:43

Leave as percentage of residue after all costs met

That opens up the possibility of the charities taking action against the estate if they think it is being mismanaged in a way that reduces or delays their payout - exactly the scenario the OP's father is trying to avoid.

cathyclown Mon 20-Nov-17 12:57:33

If he has the money now, why not make a donation whilst alive, and leave those charities out of the will altogether.

specialsubject Mon 20-Nov-17 13:24:41

Oops, really? My apologies. I thought that was the workaround charity grabbing but clearly not.

In that case - don't leave anything to charity in the will. Leave instructions to the beneficiaries. Can't be enforced.

TeenTimesTwo Mon 20-Nov-17 14:01:58

Financial planning - IHT is reduced if at least a certain % goes to charity. Effectively the government 'pays' for most of the donation.

Novemberblues Mon 20-Nov-17 22:26:55

How odd, it should be clear surely to the solicitor re capacity! From the questions they ask the way they talk etc? I have know relatives with dementia and trying to even start a will would be the last thing they could do. Having worked in a nursing home it's been crystal clear who has dementia and who doesn't

TeenTimesTwo Tue 21-Nov-17 08:40:14

Thank you to everyone who responded. I've rung up a couple of other solicitors (names given by my DPs) and got their quotes & response (which was take capacity on a case by case basis) and relayed info to my DPs. They are going to ring the solicitor they originally contacted and have a chat by phone to get proper quote and understanding and then decide from there. The 14 page T&C freaked them out a bit.
Thank you again.

Novemberblues Tue 21-Nov-17 11:35:29

It sounds like they just got an odd one who decided to focus on capacity!

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