Can one parent change their will?

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My parents made identical wills 20 years ago that state that they each leave everything to each other, if of them is deceased the estate to be split equally between myself and 2 siblings. So nice and succinct and relatively simple.

Roll forward to the present day and my mother has had a stroke and also suffers with moderate dementia. Dad now doesn't want his 'half' to go to mum, he wants to leave his half straight to his three children. His reasons are that mum will probably soon go into a care home and she will have no benefit from his 'half' whereas us children would etc.

My question is, can he legally do this? No one currently has Power of Attorney for mum, just in case this is relevant.

He can change his will but not hers.

Of course he can! Surely?

Yes. They made identical wills and at the same time, but each has their own with their own name in it. Of course he can change his.

Yes, obviously just just his.

He can change his, but not hers.

Me and my OH have mirror wills, but we could change our own at any point.

He can do what he wants with his assets, but not anything joint. I would assume the most valuable thing is their home (if they own it), so are they joint tenants, or tenants in common? A poa can't change a will, and she can only change it if she still has capacity. It would be worth your father setting up you and/or your siblings as poa's now in case he loses the ability to manage things in future. A conversation with a solicitor is advisable now.

Thanks, I thought he could as well, but with mum having dementia I didn't know if this would be allowed, or if there were special rules etc.

The benefit she would have is being able to sell the house to pay for the care home.
Isn't it?

They jointly own their home, no mortgage. I don't know if it's owned as tenants in common or joint tenants.

This is the biggest issue to clarify. He can leave money etc to whoever he wants but if they own the house as Joint tenants, which most people do, then he can't leave 'his share' to anyone. It becomes hers automatically.

He can, but it depends on how they own the house. If it is jointly owned then it automatically goes to the surviving owner; they don't own "shares". If they are tenants in common he can leave his portion separately but she will still own her portion.

@Fitzcarraldo353 thanks for the information, he doesn't know how it's owned, how can I find out? Is it shown on the land registry entry?

@Dithercats care home fees don't come into it, we have been told that mum will definitely have continuing care due to her stroke and dementia so nothing to pay.

He can, however, unilaterally change the tenancy to joint, can't he? Then he can leave his half to his kids, probably with a clause giving his wife the right to live there until she moves (depends if she is at a stage where she could continue living there without DF).

Yeah have a look at the deeds on land registry. I think it won't specify if they're joint tenants but if they're tenants in common there will be something stating this. Do check this or look it up. There's good info online.

• change it FROM joint to in common

You can but you need to notify the other party and if they don't have mental capacity then that might be an issue?.

CHC if one is 'lucky' enough to get it will provide care yes, but most people choose to top up to be in a nicer home. Obviously the LA will buy the cheapest care possible and families often want to choose their own home to have a higher standard or choose location etc.

Absolutely, anyone can change their will when they need to. It would be fair and kind to let his wife know that he’s doing it though.

He's notifying not asking for consent, so I don't think capacity matters, but probably should be checked with someone who actually knows! If you think this might be a good idea, maybe ask on legal, OP?

Surely if your mum needs to be in residential or nursing care the house won't form part of the financial assessment from Adult Social Care if your dad is still living there?
They may ask that her state pension and any savings be used if the family wish to 'top up' care.

edited as realise that was snippy.

The OP’s DF is concerned about what happens if he dies before his wife and all his assets going to her and therefore her care and none of them going to his children.

Sorry, I should have quoted Dithercats post where they mentioned 'top up fees' for care - if that might be a route OP
and the family might consider...

The threshold for continuing healthcare funding is very high. My DM with dementia and FIL with dementia who needs constant supervision don’t qualify. I wouldn’t be so sure unless she’s moving into a care home now and that assessment has been completed. The thresholds change over time too, as grandparent qualified more easily 7 years ago, than DM 7 years later.

One only qualifies for CHC if there is nursing care need. If it is social care then the threshold won't be reached.
So if feeding, toileting, giving basic meds & supervision then no, they will not qualify for CHC.
I imagine the postcode lottery will apply also.