Legal protection without a will

[Rainbowsausages]

FIL in his late 60s has been unwell for some time. We’re helping make plans for a will and funeral as he has nothing in writing should the worse happen, we would be clueless to what he’d want.
However this is where it gets complicated.
He is still married to MIL who is a horrible toxic woman. They have been separated for 5 years but she refuses to divorce FIL. We believe it’s so she can have his money if he passes before her.
So our concern is that FIL doesn’t see the need for a will as he wants DH to take his money without anyone’s knowledge. We’ve explained it doesn’t work like this but without his co operation legally MIL will have the final say. She is likely to be spiteful and request he is buried abroad or something similar that would upset DH, then take the money for herself.
So can anyone advise how we can have it legally written that MIL isn’t allowed anything or to make decisions for FIL. He would of course consent, we aren’t taking over, we just want to make sure he is properly protected but he doesn’t quite understand the legal implications of avoiding it so he won’t do this himself.

He needs to make a lasting power of attorney and also make a will.

He can set up a Lasting Power of Attorney for use whist he is alive (if he becomes unable to deal with his own finances or welfare decisions) but once he dies then the only way for his wishes to be carried out is if he makes a will.

If he lacks capacity to make a will the Court of Protection has power to make one on his behalf - a Statutory Will. However it's not straightforward and if FIL is just being awkward or silly then it's probably not the answer. If his health worsened and he became incapacitous approaching death then the court has power to act in emergencies but that's a bit of a remote backstop type operation.

Whether getting him an appointment with a solicitor who can explain it in short and simple words would help only you know.

If he dies without a will his wife will get most if not all.

We’ve explained it doesn’t work like this but without his co operation MIL will have final say

If he can't or won't grasp that, then you're on a hiding to nothing unfortunately. What's the source of his problem? Stubbornness? Not wanting to think about dying? Or got some other kind of mental block? Because unless you can unblock his thinking, you're not going to get anywhere with any legal method. Sorting his will - and getting a divorce - are so obvious it's weird to hold back without an ulterior motive.

Thanks everyone, I will show him that it’s not something we’re making up and it’s a real legal issue he’s putting DH in the position of. He struggles to understand, we think he may have an undiagnosed special needs, he’s also dyslexic so we deal with his ‘life admin’ because it confuses and stresses him.

Can you take him to see a solicitor and have them explain things? Or take him to have a conversation with an advisor from Age UK who will tell him exactly what you have said. If he doesn't make a will, MIL will get everything and there will be nothing anyone can do. Is that what he wants?.

Agree with others that he needs to make a lasting power of attorney and a will. He also needs to divorce his wife. He does not need her agreement to do this.

Agree with @prh47bridge he can start the divorce proceedings, and along with all the other suggestions would be a good move to stop MIL contesting the will (if he agrees to make one).
Given your description of her she sounds like someone who would contest a will out of spite.
To summarise,
He MUST make a will or his money will go to her,
He should make a lasting power of attorney,
He REALLY SHOULD start divorce proceedings to ensure his wishes in his will are not challenged!

Thanks again, I have suggested a solicitor visit but he refused over not wanting ‘a fuss’.
Is there any way at all to stop MIL having a say in his burial?
Or a way to force her to divorce him? The process began many years ago (FIL paid online for it) but the paperwork disappeared so there is no trace and nothing was signed.

You can't force her to divorce him. He had the right to divorce her. He needs to understand he had responsibilities in all of this, the not-wanting -to -make- a- fuss line must be so frustrating for you!!! He's being so passive!

No you cannot force her to divorce him, he can divorce her without her consent. He needs to make a Will, stating his funeral wishes and perhaps draw up a funeral plan. He cannot just give his son money without anyone knowing if ex is legally entitled to it. Some solicitors do home visits, would he agree to that and setting up poa can be done online, he could also redo another online Will.

I would just be very, very clear that if he doesn’t make a will, MIL will decide whatever happens to him an inherit (pretty much) all his money, property and assets. Then volunteer to make the appointment for him and again be very clear it is the only way to avoid that. If he declines again I would leave it.

oh my goodness, I have no idea what that GIF is or how it got there 😂

Does he own property with her still, and if so on what terms?

Good suggestions, thank you all. We’re just so frustrated with trying to get organised for his benefit. Most of all I’m doing it for DH as although he wouldn’t care about losing the money, if his dad isn’t buried locally he’d be devastated. MIL would do everything in her power to ruin it for everyone. They don’t own a property together, they’re both living in separate council flats. I wish he would understand ‘the fuss’ is for his son and grandchildren, he may not be around to witness the aftermath but we will and it’s so cruel to leave us in this position.
Chewbecca 😂

He needs to make a will in favour of dh otherwise mil will have a claim.

If he has any assets, as you say he has no property, he can gift them away before he dies. For funeral/burial, would your MIL actually know that he has died? If your husband steps in straight away, he may be able to organise quickly enough to have everything completed before she can take over. Would help if you had witnessed letters of intent from FIL too. Ultimately though, a will is what he needs to do to make sure they get the outside they want

He should also make a Letter of Wishes alongside his Will in which he can stipulate how he wants property, chattels disposed of etc. He can also stipulate his wishes re burial, cremation etc

If you bought a will pack from a stationers and wrote a very simple will that said that he wanted his estate to go to his son, and for his funeral to be held at xxxx place, would he sign it? A will, at its simplest, is just a piece of paper with instructions on, signed by the person and witnessed by someone who is not a beneficiary.

My husband and I made our wills during lockdown so didn't have any face to face meeting with the solicitor. It was all done at a zoom meeting, which was then followed up by email.

Wonder if your father in law might find that less of a fuss?

I used freewills.co.uk - there's an online form to fill in, they check it and send you a copy to print and sign with witnesses. They try to sell you upgrades, but just keep saying no and the basic service is completely free.

I think you're biggest issue here is getting your FIL to engage.

So to that end, everytime he mentions his money, funeral, future plans I'd say "it's ok ex-wife will have it, plan it, decide" ad nausium. Every single time. Even if it's a conversation between others but he's in the room.

He doesn't want to make a fuss, "yes it's probably better that ex-wife just decides"

You can't force him to do anything but it's obviously much better if he does.

Just checking he’s in U.K. as you mention a funeral abroad. If abroad the law of that land would apply as regards wills and it might not be possible to disinherit MIL while married.

If he dies abroad it can get complicated. If he were to go abroad to die at what is clearly end of life and assets were in UK then should be fine.

UK, or at least England, use domicile rather than residnce. In simple terms your domicile is determined by how you live and identify - somebody summarised it as 'home is where the heart is'. It can get complicated where there are assets outwith the UK and significant time and life effort were put into, say, living post retirement in jamica.