Carer being granted Power of Attorney - and 1st executor in a will

[Openlaw15]

Re: Carer being granted Power of Attorney - and 1st executor in a will

The Residuary Estate is whatever remains after all specific gifts are made (on page 2 perhaps) and all debts, taxes, admin, probate and court costs are paid.

No that is incorrect as the residue includes where the will's gifts fails. It is whatever remains also but it normally applies where you are successor interests or interests in remainder. The lawyer is saying if the executor did not perform their role then residue passes to the interest in remainder. I do not agree with that as that was not the intention of the will maker.

[Amethyst]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Can you explain that in laymans terms.

It sounds like you are agreeing with MarieFab, in that the residuary estate is what is left after everything has been dealt with.

A residuary estate, in the law of wills, is any portion of the testator's estate that is not specifically devised to someone in the will, or any property that is part of such a specific devise that fails.

[Openlaw15]

Re: Carer being granted Power of Attorney - and 1st executor in a will

the "Residuary Estate" is to be passed to Janet (The Carer) otherwise, to Cancer Research

So if she relinquishes her duties as executor, the estate is still left to her?

so worst case scenario - she relinquishes all duties - gets all the money - refuses to pay for the funeral?

Could that happen?

Hi Shane

You never quoted me so I did not know you made further posts.

If the executor would not follow her responsibilities, technically she could claim the gifts for herself. However this is where the gifts fail likely owing to no fault of her own. If she kept the gifts, you likely could sue her (claim in personam) and claim all the assets (claim in rem). There is tested case law in the executor's keeping the gifts for their self where there were intended beneficiaries. Where the estate's gifts were not carried out or partially carried out it is likely to come under the intestacy rules, at common law (case law).

[enaid]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Hi Shane

You never quoted me so I did not know you made further posts.

If the executor would not follow her responsibilities, technically she could claim the gifts for herself. However this is where the gifts fail likely owing to no fault of her own. If she kept the gifts, you likely could sue her (claim in personam) and claim all the assets (claim in rem). There is tested case law in the executor's keeping the gifts for their self where there were intended beneficiaries. Where the estate's gifts were not carried out or partially carried out it is likely to come under the intestacy rules, at common law (case law).

Post 14 is an update on the way things are now, if you read that you will see you are posting pointlessly and confusing matters.

[Openlaw15]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Can you explain that in laymans terms.

It sounds like you are agreeing with MarieFab, in that the residuary estate is what is left after everything has been dealt with.

"A residuary estate, in the law of wills, is any portion of the testator's estate that is not specifically devised to someone in the will, or any property that is part of such a specific devise that fails."

The residue estate applies where there are say one set of beneficiaries versus another set, ie one or more charities. If the gifts were intended for the first set of beneficiaries but failed, the gifts pass to the charities, ie the remaining (remainder)/ what's left. However, if all the appointed beneficiaries decided they would retire from their duties, the estate does not pass to that charity as the lawyer unhelpfully said. What happens is that the intestacy rules will apply either partially or fully.

NB: Failed gift like means one that did not satisfy the formalities required for law, so equity (another form of remedy in the courts, but not strictly law, it's discretionary) steps in to help in certain situations.

[Amethyst]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Okay so if all named beneficiaries under a will refused then intestacy rules would kick in? Are the charity not a named beneficiary then ? ( if the will states along the lines of ' everything to go to Jeff, but if he doesn't want it it should go to Charity A' )

Obviously we only have that front page of the will so don't know how it is worded, so theoretically only.

[Openlaw15]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Okay so if all named beneficiaries under a will refused then intestacy rules would kick in? Are the charity not a named beneficiary then ? ( if the will states along the lines of ' everything to go to Jeff, but if he doesn't want it it should go to Charity A' )

Obviously we only have that front page of the will so don't know how it is worded, so theoretically only.

It is a different situation where the beneficiaries have a choice to accept their gift but choose not to. It is a gift so there is no condition attached. Only if the gifts fail (owing to not meeting formalities, ie not in writing for property, or other exceptions) then it will go to charity unless the executor can satisfy the common law rules to claim it their self for the intended beneficiaries. A charity will be named in the will normally unless it is was a secret (secret trust etc), which the testator is entitled to do.

NB: The intestacy rules crop up where there was either no will or where there was a will but for some reason the testator's terms were not carried out (executed), meaning all the gifts have not passed to intended beneficiaries. The situation where this like applies is all appointed executors refuse their duties.

[Openlaw15]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Post 14 is an update on the way things are now, if you read that you will see you are posting pointlessly and confusing matters.

I was merely trying to put the OP at ease by explaining beneficiary rights in complex situations affecting executors.

[Openlaw15]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Okay so if all named beneficiaries under a will refused then intestacy rules would kick in? Are the charity not a named beneficiary then ? ( if the will states along the lines of ' everything to go to Jeff, but if he doesn't want it it should go to Charity A' )

Obviously we only have that front page of the will so don't know how it is worded, so theoretically only.

NB: Sharon, private message me with the current details of the 'beneficiary situation. I may be able to help if you're still having problems.

[Amethyst]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Thanks, no I'm only talking about in this specific case.

[Shane1104]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Thanks all for the replies! gonna try to get a copy of the full will uploaded today.

Few things since i last posted

An Independent Solicitor has viewed the will now - states it's a very poor will, very hard to interpret
Has asked us to request to see the Will writers notes from the day the will was signed - as the carer won't disclose why she was chosen to be "executor"


can it be considered a conflict of interest if a carer accepts to be beneficiary? as she is being paid to care for the person?

there are multiples of cash withdrawals on the bank statements (£200 - £300 per week) when my partners granddad was unable to move, let alone go to a cash point.

when the carer was asked these questions - she was defensive - and simply said "i was asked to get it" all the bills were paid by DD - nothing was paid in cash - and there is no cash in the house - so when asked where the money went she "didn't know"

it was then revealed in 2012 - she left her job as a carer - but continued to visit partners GD as a carer - i can only presume in a personal capacity - as she was no longer employed as a carer.


there just seems to be a whole load of issues and discrepancies throughout this - making it very hard for my partners granddad to mourn when he feels there is foul play

[Openlaw15]

Re: Carer being granted Power of Attorney - and 1st executor in a will

Thanks all for the replies! gonna try to get a copy of the full will uploaded today.

Few things since i last posted

An Independent Solicitor has viewed the will now - states it's a very poor will, very hard to interpret
Has asked us to request to see the Will writers notes from the day the will was signed - as the carer won't disclose why she was chosen to be "executor"


can it be considered a conflict of interest if a carer accepts to be beneficiary? as she is being paid to care for the person?

Any person can be a beneficiary as long as they have not unduly influenced the testator, in which case any gifts they were meant to receive would fail (ie not receive them).

there are multiples of cash withdrawals on the bank statements (£200 - £300 per week) when my partners granddad was unable to move, let alone go to a cash point.

Did she have power of attorney (to legally act on their half), ie deal with the finances?

when the carer was asked these questions - she was defensive - and simply said "i was asked to get it" all the bills were paid by DD - nothing was paid in cash - and there is no cash in the house - so when asked where the money went she "didn't know"

it was then revealed in 2012 - she left her job as a carer - but continued to visit partners GD as a carer - i can only presume in a personal capacity - as she was no longer employed as a carer.


there just seems to be a whole load of issues and discrepancies throughout this - making it very hard for my partners granddad to mourn when he feels there is foul play

I'll look at the full will before I make any comments about the will itself.

If the carer misappropriated (spends without consent) funds it is a criminal offence.

[enaid]

Re: Carer being granted Power of Attorney - and 1st executor in a will

The carer had power of attorney ? If so then you should ring the OPG they can advise you if you have concerns of wrong doing.

[Shane1104]

Re: Carer being granted Power of Attorney - and 1st executor in a will

I'll look at the full will before I make any comments about the will itself.

If the carer misappropriated (spends without consent) funds it is a criminal offence.

i apologise for the poor quality of page 2 - as the actual will is now with the chief executor - and we didnt think to take a copy!

it does however state: I Give to my Son "**********" free of all taxes all my household contents

Definition of my estate


In my will where the context/content as admits "My Estate" shall mean


All my property of every kind wherever situated


All My property of every kind wherever situated over which i have a general power of appointment


The money investments and property from time to time representing all such property


Administration of my estate:


My trustees shall hold the residue of my Estate upon trust to retain, postpone sale or sell it and will


Pay any debt, funeral and testementary expenses


satisfy all gifts of specified property referred to in my will


http://imgur.com/a/79LGX

[Openlaw15]

Re: Carer being granted Power of Attorney - and 1st executor in a will

i apologise for the poor quality of page 2 - as the actual will is now with the chief executor - and we didnt think to take a copy!

it does however state: I Give to my Son "**********" free of all taxes all my household contents

Definition of my estate


In my will where the context/content as admits "My Estate" shall mean


All my property of every kind wherever situated


All My property of every kind wherever situated over which i have a general power of appointment


The money investments and property from time to time representing all such property


Administration of my estate:


My trustees shall hold the residue of my Estate upon trust to retain, postpone sale or sell it and will


Pay any debt, funeral and testementary expenses


satisfy all gifts of specified property referred to in my will


http://imgur.com/a/79LGX

Update:

There are two competing interest for the estate, either Janet or Cancer Research UK, according to the will.

Testamentary capacity test (deals with the mind's faculties)

Before a will can be legally valid, the deceased person must be of the right mind, so the courts do a test called testamentary capacity, in addition to the writing of the will. If the granddad did not have testamentary capacity, the will is not valid.

How old was your partner's granddad when Janet (the Carer/ appointed executor) first came to work for him as his carer. How long was she his carer? What was the state of his health/ mind when Janet came to work for him, did his health/ mind deteriorate at any point during Janet's employment when the granddad may have been in a position to be influenced, ie would it have taken much to cause him to be put under so much pressure that 'for a quiet life' he would appoint Janet his executor and gift her everything?

Thanks for this Shane. If the carer was not given power of attorney it's likely she is committing theft. If the entire estate has been left to the Carer as there seem to be problems with her, my next question would be the details of the will itself, ie has the carer unduly influenced the deceased person?