Can my late father's will be declared invalid

[Willadviceplease33]

Hi, I've changed my username for this one and would very much appreciate some legal thoughts on this.

Dad died with hepatitis C and liver damage. He was a haemophiliac and a contaminated blood victim. He died about 20 years ago. His will was a mirror will and left everything to mum. Mum is now very elderly and in a care home with severe dementia. She hasn't got long to live.

If his well-overdue compensation goes to mum and even if she passes away a week after it will be entirely subjected to inheritance tax. I think this is dreadfully wrong, for the government to immediately snatch 40% back.

There is no way he anticipated this ever happening I.e. the government finally admitting fault. He never expected compensation to ever be paid.

Can my family (my siblings and I) somehow get his will invalidated so that it reverts to Intestacy? This would mean a lower iht bill. My logic is that he did not know the value of his estate when he wrote the will as this compensation massively outweighs his original modest estate, that is, he did not have testamentary capacity.

Please be kind. This scandal devastated our family.

Many thanks.

Yes I am.
It looks at the moment as though applications where there are a lot of affected people won't open until after the new regs are in place as the affected claims are tied into the infected claim - i.e. you prove your dad's claim and you and your siblings then need to prove your relationship but not his health.

People are being invited to apply at the moment but they're not opening the full application process until later this year and there is no indication at the moment of which groups will be invited first so it may be one of those things that just doesn't need to be worried about.

BTW we are trying to get support from our family solicitor who has been very good in the past. I'm sure sure he is the right person though.

I would suggest talking to the Haemophilia Society first - they are all over this and know which firms are already acting.

Fairly certain that if all beneficiaries agree, you can vary the terms of a will on the basis of tax efficiency - my solicitor advised this. Your mum could decline her inheritance.

The problem that you have is that your mum doesn't have capacity to agree to decline her inheritance. Take legal advice.

At the risk of sounding heartless, drag the compensation process out for as long as possible. If your mum predeceases the award then presumably it will fall due to your father's other relatives - you and siblings?

Op - how much is the total estate worth including the potential compensation?

Remember you have potentially £1 m free of inheirtance tax

Looking at the gov pages, it seems like it would be best to delay the 'infected person' claim for your DF. Don't forget you'll also have 'affected person' claims for yourself and your DM. You will have six years to claim though.

You could possibly apply for an interim payment though if that would help financially. This would then be deducted from whichever claim (infected person - DF, or affected person - DM or yourself) it's relevant to.

I hope you get it sorted as best as possible and I'm so sorry for what your family has been through.

This is a really specialist area, you need a specialist. Often with these things there's a lot of "you don't know what you don't know" and decent family solicitors get in a pickle on all kinds of niche matters. I deal with disease claims and wouldn't want to dabble in this. Please speak to a specialist firm recommended by one of the victims groups, I see Irwin Mitchell have been mentioned and they are the type of firm I would suggest are in a good position to advise you.

Very sorry to hear your family was affected by this, total scandal and a travesty it taken so long to sort out. The longer it drags out, the less have to pay. The affected claim will die with your mother, it does not pass on. So if you delay your father's claim, you may lose that part of the comp scheme albeit that is a lot lower than the infected. Anyhow, I think the infected payment always comes first as they need to establish severity, infection level of the infected in order to inform the amount payable to the affected.
Campaigners have been trying to get a second layer of IHT exemption for exactly the reason you are demonstrating but it has been dismissed sadly.

@farfallarocks
Campaigners have been trying to get a second layer of IHT exemption for exactly the reason you are demonstrating but it has been dismissed sadly.

I can understand why it's been dismissed as the children, spouses, carers etc quite rightly have their own compensation.
It's absolutely disgraceful that this has been dragged out so long.

Surely if the compensation was payable to your late father, then it would have only been applicable for his tax or care home fees?
Regarding POA, financial decisions cannot be made that would leave the person worse off financially, so attempting to change a will whereby they received less inheritance would fall under this.

Do the medical negligence people have details of the name of the person and bank account into which the compensation is to be paid?

If not, then any amount of time-wasting confusion could arise from that, which would effectively delay payment until such time. As it were.

I’d definitely contact Irwin Mitchell as it’s likely they’ll be doing a class action
You can then make a more informed decision as to whether to wait for your mother’s death or not.
This is very niche and new so beyond normal personal injury/probate lawyers’ knowledge.
For those spouting the normal IHT arguments, the point here is that the OP’s father would have either spent the money had he been given it earlier or made plans to give it to his family earlier and drafted his will accordingly.
The government should not give with one hand and immediately take away with the other.
Whether they can do so is something Irwin Mitchell might be able to advise on.

The mother's affected claim cannot be pursued after her death but each child will have a claim as an affected person in their own right provided they meet the criteria in the legislation.

That’s not true if the will was correctly witnessed and written at the time it is legal regardless of value of estate when died. Many changes happen during a lifetime just because you don’t know all the circumstances which can change doesn’t make it invalid.

The affected amounts are tiny though, the main body of compensation will be for the infected (or their estate) hence why the IHT point is so unfair.

Ok thanks all. So the Will idea is probably unlikely and our best chance is by delaying stuff. How awful :(

Having read more of this thread, I believe you could vary your late father's Will using the PoA for your mother so the compensation comes direct. There is no time limit on a variation providing your mother is still alive, only in respect of HMRCs acceptance for IHT. A lawyer should be able to confirm that it is an acceptable use of the PoA and I can't see why not.

There would be nobody to challenge the Variation as it wouldn't impact HMRC, and although not effective for IHT as it is more than two years since he died, it wouldn't matter because it is exempt from IHT on his death.

I'm thinking that you shoud complete the Deed of Variation in advance of receiving the compensation to be on the safe side. The Variation could presumably refer to the Varying of only that aspect of the estate to limit any other issues that may arise.

When dad died a deed of variation was put in place to do with his and mum's home. Nothing to do with the current situation. Is it possible to do two deeds of variation or because we've already done this once does it preclude it again?

Many thanks

Throughthebluebells are you legal?

You're giving me hope.

Thank you

I'm not a lawyer but isn't a Power of Attorney limited to acting in the best interests of the donor (I.e. the mother in this case)? In which case I'd definitely be seeking advice on whether diverting money away from the mother is an appropriate use of this power.
You can't just make decisions "that mum would have made"; there are explicit limits on it.

As I believe I stated in my first PP, I'm not a lawyer. I am retired now but have been a highly qualified member of the Society of Trust and Estate Practitioners (including being a Committee member) since it's formation and have had a long career culminating in top level management of a dedicated Trust company advising trusts and estates on a daily basis.

You do need to contact a lawyer, but yes you can do two Deeds of Variation providing they deal with different parts of the estate.

I agree it can be difficult to use a PoA to carry out IHT planning as it can only be used in your mother's best interests. This is problematic but there are cases that have succeeded including this one:

"Historically a key difficulty with such applications has been how to argue that a substantial gift, on behalf of a mentally incapacitated donor, can in any way be in their best interests if the primary motivation is to mitigate IHT on their death.
However, the recent Court of Protection case of In the matter of JMA ([2018] EWCOP 19) demonstrates that these types of applications can succeed. The application was for various gifts totalling £7m from an estate worth £18.6m – including one of £6m to himself! The reason given for bringing the case was to reduce the burden of IHT on her estate for the benefit of JMA’s heirs as a whole – of which the applicant was the main one."

As I am not lawyer and no longer practising, I am not in a position to advise you, but I suggest you explore your mother's position in more detail. Would anybody loose out if the DoV was completed? Would it have any impact on her benefits or contributions to her cost of care? If so, it could be challenged as you cannot use it to avoid paying for care or to allow her to claim more benefits. That would definitely not be in her best interests.

You would be varying your father's estate and in that, the compensation is free of IHT so you can legally declare within the DoV that this variation has no IHT implications. It shouldn't therefore be of any interest to HMRC. A DoV that is not being used to reduce your father's tax would not be registered anywhere and is merely an agreement between the beneficiaries of the Will.

However, if anyone believes the PoA is not acting in the best interests of the donor or is abusing their position they can report this to the Office of Public Guardian, which oversees these roles. The Office of Public Guardian can investigate the actions of a PoA and can direct an official to investigate. The Office of Public Guardian can then choose to remove the attorney from the PoA if they have sufficient evidence to do so. In some serious cases, the Court can cancel a PoA or take action against the attorney.

So, I believe a DoV is assumed to be valid unless it is disputed and challenged - you need to work out who could or would know about it and challenge it (if anyone) and then decide what the consequences would be. In my view, it may be worth exploring that risk but only you and your fellow beneficiaries can ultimately decide whether the amounts involved are worth it and on your willingness to take that risk after taking proper legal advice.

PS. Just be aware that most lawyers will err on the side of caution and not advise you to do this! I come from a different profession where taking calculated risks and legally avoiding capital taxes was my raison d'être!

@Throughthebluebells thank you for your comprehensive reply. Apologies I hadn't appreciated you had previously responded.

It's food for thought that I will take forward. If you happen to have any legal firm recommendations (or perhaps this is also Irwin Mitchell like others have suggested) I would also appreciate this.

Others have suggested our family solicitor may be out of his depth here. I can see this now.

Thanks everyone for your thoughts, I appreciate them all.

Irwin Mitchell or a similar sized firm that has plenty of experience in this area would be a good choice. I agree that your local family solicitor is likely to be out of his depth.