Legal question

[mind the gap]

Hi all, hope you're keeping safe.

Not sure which forum to put this in - happy for Moderator to move if appropriate.

Scenario is as follows. In 2018, elderly widower changes the will he made jointly with wife in 1980s. He does it all properly, using a solicitor and include a handwritten letter explaining the changes he wants to make and his reasons for doing so.

The family suspect that one of his children is thinking of getting him to sign a third Will (produced by said daughter using an internet proforma), leaving the entirety of his estate to her. Although legally he has capacity in that he can understand and make a decision at the point when an issue is explained to him, his memory loss is now so significant that 30.minutes later, he has no recollection of the decision or even the explanatory conversation. His GP has referred him for assessment for possible dementia but because of Covid, that assessment has not yet taken place.

The daughter in question was required by the family to repay a large sum of money three years ago which she had taken from his bank account under the guise of 'caring' for him. Family thought they'd put up a firewall round his finances to protect him from future exploitation, but they're worried that she may be up to get old tricks again, getting him a bit tiddly and shoving a document in front of him to sign.

I would like to think a Will produced and even signed in such circumstances would be invalid.

Can anyone reassure/advise me?

Thanks in advance.

[Berlingogirl]

The family need to get two Powers of Attorney - one for health and one for wealth asap while he still has some capacity.

[jpkeates]

I don't think there's going to be a definitive answer.

Wills can be challenged, and a court be asked to make a decision, but it's very hard to retrospectively decide that someone was not of sound mind when a will was signed.

[mind the gap]

The family need to get two Powers of Attorney - one for health and one for wealth asap while he still has some capacity.

Thank you Berlingogirl. Those powers of attorney have been in place for some time ( three of his other offspring jointly hold them) but can presumably only be activated to prevent him signing a new Will when the father is deemed medically to lack capacity?

Is there anything the family can do in the meantime to prevent the daughter persuading him to sign another Will? He is very suggestible. And what can they do if he already has?

[mind the gap]

I don't think there's going to be a definitive answer.

Wills can be challenged, and a court be asked to make a decision, but it's very hard to retrospectively decide that someone was not of sound mind when a will was signed.

Thanks jpkeates.

I'm wondering whether the fact that the daughter was threatened by the family with prosecution if she didn't repay the money she'd taken, would have any leverage if she tried to produce the third Will after his death?

The problem is that apparently the father has no recollection of what his daughter did or the amount of money she helped herself to. He can remember some things from his youth quite well, but nothing from about 1950 onwards.

[KTC]

Those powers of attorney have been in place for some time ( three of his other offspring jointly hold them) but can presumably only be activated to prevent him signing a new Will when the father is deemed medically to lack capacity?

I guess any such assessment now would be good clear evidence that any alleged Will signed recently that magically appears later should be overturned if/when challenged.

[islandgirl]

Perhaps try a post on Legalbeagles - they have a lot of will related posts on there

[mind the gap]

I guess any such assessment now would be good clear evidence that any alleged Will signed recently that magically appears later should be overturned if/when challenged.

Yes, you'd hope so. Trouble is, the vast majority of attempts to challenge a Will are unsuccessful. It would be very difficult as jpkeates says, to prove after his death that the father had been persuaded under the influence of alcohol into signing the most recent Will.

[ExpertInAField]

I would suspect that if this is an internet proforma will then it would not have any of the necessary wording to keep the others out of the will. It would be a very easy will to challenge by the beneficiaries.

This would of course cost money from the estate to challenge the will. Sometimes the only people that end up good at the end of this are the solicitors.

[Hudson01]

Wow..... some children can be the spawn of Satan..... but that aside, is it possible for him to move in with any of the other children etc, then the rogue child will not have as easy access to him, sad i know and it may not be possible with the adults in all the various families all working but it could be a solution, if then his house is either rented out or sold and the money placed in trust etc minus his ongoing living expenses it my top the '' steal ''' by said spawn of Satan.

[mind the gap]

No sadly, it isn't possible and even if it were, he is happy where he is. He has been offered the option, but has declined.

The thorny issue seems to be the capacity question. To any sensible human being, the fact that he can forget a decision as soon as he has made it would suggest that his capacity in practical terms is compromised. But I am not sure if that is how a court would see it.

[KTC]

I'm afraid it may be worth speaking to a wills and probate solicitor for advice.

[Hudson01]

Agree with the above comment, a persons capacity can vary from hour to hour and day to day but over time it only goes one way once the decline begins, if this child is that determined to do what you say the you all need to speak with a specialist asap before its too late.

[michelle230]

Some good reading here - https://www.wrighthassall.co.uk/know...testing-a-will

Also look up Larke v Nugus.

[Dreamingofsea]

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