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Ask Clare Your Own Question
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 35076
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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Here is the background information to my situation:My Aunt (by marriage), age 86, is Irish, but has lived in England for the last 65 years. She has a house in England and an apartment in Ireland. She has no blood relatives known to us, and myself and my 4 adult children are her only livingrelatives by marriage and we live in Ireland. We are very close to her as she used to visit every couple of months and spend holidays with us.In 2007, on one of her trips to Ireland, it was brought to her attention that her sister was suffering from dementia and she took her to a solicitor to draw up power of attorney for her and they both made Wills. My aunt informed me that I was the executor of this Will with an Irish friend of hers, that it divided her estate in Ireland between family (that is, me and my 4 adult children) and friends Ireland, and that she had an English Will which was separate and divided her English estate between friends in England.Shortly after this, my aunt started to develop mild memory problems. In 2010, her sister's dementia had got so bad that She was in hospital for about 3 months and the hospital didn't want to release her home. during this period my aunt visited her sister every day. However, it was evident that she didn't seem clear on what was happening, so I asked her if I could help her and she agreed. It emerged that the staff had been trying to get my aunt to sign papers for the Fair Deal scheme and to get her sister into a nursing home, but my aunt had no idea what was happening, had no idea that she had power of attorney, couldn't concentrate to sign a paper. I helped sort this out, but unfortunately her sister died a few months later. My aunt was totally unable to process her sister's affairs and I had to help her through the whole process of clearing and selling her sister's house and carrying out probate with a solicitor, which was very difficult as she was very confused.In 2014 Because of calls from my aunts neighbours I travelled over to England and attended meetings with the memory clinic where she was officially diagnosed with dementia, and meetings with social workers who put some limited care into place.In January 2015 she collapsed from malnutrition and was hospitalised. I travelled again to meetings with the council and social workers. With the help of the old neighbour from Ireland I got enough information together to apply to the Court of Protection for deputyship of her financial affairs and this was granted in July 2015. I immediately organised a carer.Unfortunately, her dementia is progressing, and I have just visited again to organise increased care (12 hours a day) and to visit nursing homes with a view to the future. I also had the chance to examine her papers and files for the first time. As her Deputy I am supposed to inform the court of her complete finances, Will, etc in England. The deputyship only covers her English affairs and servicing her assets.Here is the problem:While organising care-taking for her apartment in Ireland I found her Irish Will, dated 2007. It is indeed as she said. I and a friend of hers are the executors and it states:
"I hereby declare that this Will shall apply to my Irish assets only and that my English assets are bequeathed by separate English Will (hereafter Called "my English Will") which will take effect concurrently with and separately hereof. "But in her house in England I have now found an English Will. It is not at all what she said. It is not dated 2007, and is not structured as a separate English Will. It was written in 2010. It would appear that she was in negotiations with the Bank in 2010. They reorganised all her investments, a considerable amount of money amounting to around 400K, and apparently drew up a new Will. To my surprise I am also the executor of this Will with the bank. This will states:
"I revoke all other Wills and testamentary depositions "And the definition of Estate in the Will is:
"All my property of every kind wherever situate
All my property of every kind wherever situate over which I have a general power of appointment
The money, investments and property from time to time representing all such property"In this Will there is no mention of property or money in Ireland or of an Irish Will. My aunt clearly wasn't aware of her Irish affairs at this stage.I have three questions:1. Is her Irish Will still valid if this English Will is is valid or was left in place?
2. Were the bank legally allowed to do business with my aunt without getting a doctor's opinion on her competence? It was quite obvious that she had memory problems, so is the English Will valid?(by the way, neighbours found people from Private Banking in her house last year trying to negotiate with her in a state of total confusion)
3. Can we do anything about this situation of the 2010 English Will?
HiThank you for your questionMy name is ***** ***** do my best to help you but I need some further information firstWhy do you have a problem with the English Will?
Customer: replied 2 years ago.
Hi, I have a problem with the English Will, because if it is legal and if it revokes the Irish Will, then I believe it will not carry out my aunts wishes as expressed to me. She specifically made an Irish Will, separate to her English Will, when she was compis mentis, and wished to leave her Irish Property and money in Irish accounts to be divided between 10 relatives and friends in Ireland. (See extract above) She told me this at the time and told me that her English Will would deal with her property and money in England and would be distributed there. What I see is that the Bank did business with her 3 years later when she was already suffering from dementia, and made a will that seems (see extract above) to revoke the Irish will. In the English will she says she is leaving her property and money to charity. I believe she was not in her right mind when she made this Will. I am one of the executors on both Wills, but she didn't tell me about this new English Will. However, if the English Will does not revoke the Irish Will, I would leave it alone, because she said she wanted her English assets distributed in England.
Do you have any medical evidence relating to 2010?
Customer: replied 2 years ago.
No. Just witnesses, such as the hospital where her sister was, the staff that couldn't deal with her, the solicitor who was trying to carry out probate for her sister.
Customer: replied 2 years ago.
The first question I have though is, does the later English make the earlier Irish Will invalid, even though she states in the Irish one that it applies to her Irish assets? And/or does the English Will have jurisdiction over the Irish assets ? The English Will does not make reference anywhere to "foreign Wills"
Sorry for the delay - I have been searching for a case which I KNOW exists but to date cannot traceThe answer to your question is not straightforward and you will also need to check the position under Irish law.Looking at English Law in the normal way of things those words "hereby revoke etc" would indeed revoke the Irish Will as well.HOWEVER there has been a recent case which held that if it is clear that it was NOT meant to cover the foreign assets then the other Will will standIt is referred to here I cannot find the reference itself.Separately of course there is the question of whether or not your Aunt had sufficient mental capacity to execute a Will in 2010, something you may need to discuss with her doctor.It woudl be wise to raise these issues with the Official Solicitor now as it is still possible to replace the English Will with a Statutory Will if the OS agreesPlease ask if you need further detailsClare
Customer: replied 2 years ago.
Hi Clare, thank you for your answer. I appreciate you looking for that information and apologise if I seemed impatient.With regard to the recent case, in our case, what would prove that "it was clear that it was NOT meant to cover the foreign assets"?With regard to her doctor, there have been 2 changes of her doctor in her local practice and she has had little contact with the new doctors. i would have to try to contact the doctor who knew her before the dementia. I don't know how this would go as when I started asking her to get my aunt assessed, she told me that it was a breach of privacy to talk to me, and that she had already offered assessement to my aunt and she had declined the offer. I had to impress upon her that my aunt was starving due to not remembering to eat, and that of course she didn't think she needed assessment. When my aunt was assessed she had substantial dementia and the memory clinic in the local hospital said that she had no ability to manage her financial affairs.Also, can you explain what it means "to replace the Will with a statutory Will if the OS agrees"? What is the "OS"?Many thanks.
You were not impatient at all - I was just anxious about the delay!I would suggest that the fact it did not specify the Irish assets would be useful in showing that they were not included!It might be sufficient for her consultant now to give an opinion as to when the confusion would have been likely to have startedThe Official Solicitor (part of the Court of Protection) can agree to the creation of a new Will - a "statutory Will" despite the fact that your aunt no longer has dementiato put in place what her known wishes were.
Customer: replied 2 years ago.
Hi Clare, I am happy with what you have answered so far. I think I now need to go off and make enquiries from her doctors, the court of protection, and an Irish solicitor. I would possibly like to come back to you after that to clarify any outstanding points. If I pay now, can I contact you specifically on the future through this site? I don't want to have to start afresh with someone new.
That is a very sensible way forward - and you can always ask for me when you ask your next question
Clare and other Family Law Specialists are ready to help you
Customer: replied 2 years ago.
Ok. Many thanks.