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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 71153
Experience:  Over 5 years in practice
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Hi, my 94year old mothers partner of 13years died last year.

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Hi, my 94year old mother's partner of 13years died last year. He was twice divorced and had no children. Unfortunately he did not make a will. Prior to meeting my mother he lived in his parents home that was owned by his youngest brother, so had no property.
He lived with my mother until he went in to an NHS dementia home. He had no current account only a "joint savings account" with my mother, which was mainly an accumulation of his monies from state pension etc (my mother used this to pay any incidentals out that arose, on his behalf).
On his death we informed the Pensions Dept. and took a copy of his death certificate to Santander, as was requested. His Postal ISA and Abbey shares were sent to his brother as next of kin. Santander advised us that the monies in the "joint savings account" was now my mothers monies even though she had not contributed. The account was closed and transferred to Barclays as she had no other dealings with Santander.
Morally she does not feel all this monies is hers and wishes to divide the majority to his great nephews and nieces. In a discussion with his brother there seems to be a stumbling block on who does and doesn't get the monies. She feels she has a right to decide and his brother feels he should choose.
Firstly, legally are we correct in saying this monies is now hers, to do with as she wishes with it as it passed to her from a "joint saving account" that she did not contribute to?
Secondly, if this is correct and she writes out the cheques what implications does it have on her estate if she does not live a further 7 years as it will presently take her estate over the inheritance allowance.
Thirdly and lastly, although it was a joint account she does not feel morally entitled to it all (even if legally she is) so if she wrote out the cheques could a legal document be drawn up and signed stating that she received this monies in theory by default and wishes to place it in the correct relatives hands or her partners behalf and therefore the amount would not be classed as part of her estate.
Sorry to ramble but I wanted to give a clear picture.
Yours sincerely
Thank you for your question. My name is ***** ***** I will try to help with this.
Does the deceased partner have any other siblings apart from the one brother?
Customer: replied 3 years ago.

Hi Jo,

the deceased has 2 living siblings - a brother and sister.

The situation is laid out in statute under the rules of intestacy.
Here is a link to the current rules from which you will see that if there are no children and no parents the proceeds of the estate are divided equally between siblings.
If any sibling has predeceased then that siblings share goes to their children (if any).
If the brother is the only sibling then he gets all his deceased brother's assets.
With regard to the money in the bank account your mother has legal title to it by virtue of the fact that the account is in joint names.
However on an equitable and moral basis as both of you admit that this money was not hers and she did not contribute to it, then it should be dealt with in accordance with the rules of intestacy.
What that means is that she has no right to decide which of the deceased partner's relatives get the money as it is divided equally between the deceased's siblings. If the deceased's siblings (brother) decides to give his share of the money away, that is up to him.
With regard to your mother's concern that this would be added to her estate for her own inheritance tax liability, it should not do because this was not her asset and in any event, as she is in effect inheriting the money she is able to disclaim it which is in effect what she is doing.
Can I clarify anything for you?
Customer: replied 3 years ago.

Hi Jo,

to be a little more specific -

is the monies that was held in the joint account classed as part of the "intestacy" legally, as you have also mentioned that my mother has "legal entitlement" to this part of the monies? One seems to contradict the other.

If she chose not to pass any of the monies over would she be legally obliged to?

As my mother was her partners carer for many years in the earlier stages of dementia in her home without him contributing to board or lodgings (him possibly contributing to food bills only) plus whilst in care with the NHS being the main visitor/contact, virtually every other week would she be entitled to a share of the monies from the joint account legally if she chose and is there a way of calculating that proportion?

Whilst her partner was alive his siblings seemed quite happy for her and her family to deal with all matters as it made life easy for them but now wish to control all monetary issues.

Do we need a legal document to disclaim all or part of this joint monies she has inherited in respect of our possible future inheritance tax liabilities?

Regarding the joint monies she has inherited how or who does she pass it to for distributing, if it is not part of his estate as it passed to her can she entrust the brother to do this as the brother is reluctant to let this particular monies in question to go to probate as there are issues within his own family although he is not looking to benefit himself he would like to choose who received this. My mother would like his close friends children to be included but the brother is unhappy with this.



I didn't say she had legal entitlement. I said that she owned it legally but not equitably. In English law there are 2 kinds of title legal (paper) and equitable (financial).
She owns it on paper but has no financial interest in it.
If she decided not to hand the money over, the executors of the estate would have to prove to the satisfaction of a court that the money belonged to the deceased.
She would be entitled to money from the estate if her partner was in the habit of paying money for her to look after him.
She would also be entitled if he made her any promise such as "looked after me and one day you can have all the money in my bank account". She can then rely on a legal doctrine called Promissory Estoppel.
The disclaimer should be done by deed which solicitor can easily draft for a couple of hundred pounds.
The money would pass usually to whoever is the personal representative/executor of the estate which would normally be the eldest sibling.
It is not your mother's decision as to whether close friends and children get the proceeds of the estate because it strictly passes in accordance with the rules of intestacy for which I already sent you the link. Nor is it the brother's choice either.
If the brother is the only sibling then he inherits everything under the statutory provision
Customer: replied 3 years ago.

Hi Jo,

Thanks for the information that we are slowly digesting!

We are ever hopeful that this does not go to court but if so will take the Promissory Estoppel route.

I am aware that his brother will need to go to probate with the Postal ISA etc but as my mother received the joint account sum by legal title, we feel he is hoping to sort this amount out privately.

Would my mother or her daughters be unwittingly breaking the law if my mother kept an agreed proportion of this joint monies and wrote a cheque to the brother for the balance for him then to sort out amongst the relatives legally or otherwise?

For our peace of mind we would then get a disclaimer drawn up for the sum the cheque was made out for if I understand you correctly?

Regards Julie

Unless he takes legal advice on anything that you ask him to sign in respect of the money that you give him, he can always say that he signed it under duress and that means that he can always take whatever you send and come back to you for the rest.
If he decides to take your mother to court for the balance it would come down as to whether the judge preferred your mother's version of events (she would have to go to court unfortunately) or the brothers
your mother only commits a criminal offence if she X dishonestly and if she honestly believes that she is entitled to this money or some of it then provided it is an honest belief she commits no criminal offence.
She would however have to prove to the satisfaction of the court that she was promised something and she relied on that promise by continuing to look after her partner.
She does not have a financial interest in the money simply because it was in the joint account.
Customer: replied 3 years ago.

Hi Jo,

sorry I was trying to explain it all to my 94year old mother today so she understands the situation she now finds herself in.

To get her out of this pickle, as the "joint" money is in her account at present would it be acceptable to deal with the deceased's brother (who is acting as next of kin) as follows:-

She gives him a cheque for the total monies and he gives her a letter acknowledging this. We have a disclaimer drawn up re: any possible inheritance tax issues later down the line in respect of the cheque she writes out (can the cost of this be charged to her dead partners estate?)

The brother then chooses whichever route he wants whether he informs probate re the "joint amount" or decides himself who the "joint" amount is split between, it will be out of my mothers hands and takes her out of the loop legally.

Apologise for the lateness of this question.

Kind regards


Do not worry about the lateness of the question. Answering that for you is not a problem.
What you have suggested is an excellent idea.
However I would suggest that your mother gives him the money provided he gives a receipt for it and also provided he gives her a letter whereby he undertakes to pay any inheritance tax due on that money if it is deemed by the revenue for inheritance tax purposes to be a gift by your mother rather than her simply handing over money belonging to her late partner. The last thing that your mother wants is to hand the money over and then pay inheritance tax!
If he will not undertake to do that, then keep 40% back and tell him that it will be put on deposit until such time as there is confirmation from the revenue that there is no inheritance tax to pay because either it has gone past the 7 years or because the revenue have confirmed that it was not her money but that of her late partners.
Customer: replied 3 years ago.


thank you for this, I feel we are getting close to a solution although she seems to have lost out all round.

Previously you had suggested having a "disclaimer by deed" drawn up by a solicitor, would this not suffice for the revenue in respect of the amount of monies written out by my mother to the brother re any inheritance tax issues that may result for my sister and I if this cheques takes it over the allowance and mum does not live a full 7years?

Could the £200 approx. cost for arranging the disclaimer be charged to her late partners estate as she will not be inheriting anything?

Regards Julie

It is worth mentioning that if she had any money in this account the money in the account would become “mixed money” and the deceased’s money would therefore no longer be identifiable and that makes his claim extremely difficult.
You did say however that your mother had never contributed to this account which is where the problem lies. It means that the deceased’s money is easily identifiable.
There is an argument which says that if she puts money into the account now, it then becomes mixed money and the brother then loses his claim.
It would not be unreasonable for any legal costs in dealing with this to be borne by the estate.
Customer: replied 3 years ago.

Hi Jo,

I believe the original Santander "joint savers" account was easily identifiable as the deceased as it was mainly made up of his state pension accumulating (this was not being used as he was under NHS dementia care).

3years prior to his death Santander informed mum in a meeting that the account was not making any real interest and advised her to move some of the "joint savers monies" in to a saving bond. We explained that her partner had dementia and was unable to sign so they set it up in her name alone. Would this amount be classed as the deceased estate as it was legally transferred from their "joint savers" three years prior his death to a saving bond in her name only and is still there?

The remainder of the monies in the "joint saver account" continued to accumulate from his pension and 3years later after his death was transferred to mums Barclays saver (which had a small amount of her savings in) so is now mixed monies.

If the money has been moved and mixed with your mother's money than it is no longer identifiable.
It does not make the brothers claim impossible but makes it more difficult.
He is unlikely to succeed on a claim on money in your mother's sole name although he may allege that she was taking advantage of a vulnerable adult by transferring the money when he had dementia
Customer: replied 3 years ago.

The bond in my mothers name is ***** ***** she felt comfortable moving from the joint saver as a fair amount for the care and consideration she had given him over 10years.

He had asked her to marry him and always told her "what was his was hers". As she owned a property and had daughters who she wished to leave her property/monies too she always thought this was unwise so remained partners, dwelling in her property until he went in to care and eventually passed away.

If this was your mother/situation what would you suggest her to do?

If she was promised everything then provided she can prove it to the satisfaction of the court, if the brother decides to litigate this issue, she may be able to rely on a legal doctrine called Promissory Estoppel. That arises if someone is promised something and they then rely on the promise to their detriment. It means that (in this case the estate) is estopped from denying the promise. It comes down then to her proving on the balance of probabilities that is what was promised.
The fact that they were together for 13 years and the money was in joint names and presumably there are independent witnesses to the promise and he had asked her to marry him, all points to the money always intending to have been hers when he passed away.
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