Statutory Will for wife to disclaim her husband for care fee planning

(Lisa Nurse) #1

I have a client that wants to seek a Statutory Will for his wife who does not have mental capacity as he wishes to disclaim his interest in her estate for care charges reasons. Husband already has a sizeable estate but it is not taxable for IHT. Husband is worried that if he loses mental capacity then he will not be able to disclaim or prepare a deed of variation so is looking at a statutory will.

The wife already has a Will leaving everything to her husband.

Does anyone know if I would be successful in making this application bearing in mind the reason in that the husband does not want to bulk his estate up in case their joint estates are all taken up in care fees.

Thanks
Lisa Nurse
Graham and Rosen

(Paul) #2

You also have the problem that a disclaimer or deed of variation by husband would probably be a deliberate deprivation of assets.

I don’t see why the application for a statutory will should not be successful, the court will decide the matter based on what is in the interests of the wife, not what is in the interests of the husband (or the state).

Paul Davies
Clarke Willmott LLP

(Ben Leach) #3

I agree with Paul’s point that it is the wife’s interests that are of importance, not how it would affect the husband or potentially the state.

That said, I wonder whether the possibility might be considered of the application being made by the children (or other intended beneficiaries), in which case the question of an ulterior motive doesn’t even arise - they are simply seeking to obtain an inheritance. It is difficult to see how husband could be criticised if he acquiesces to such an application.

Ben Leach
Molesworths Bright Clegg

(Carmen Cottingham) #4

If the children applied to the COP for the statutory Will to exclude the surviving spouse would they not investigate that further? If this occurred in another case it could lead to a claim from the husband for financial provision (if they had insufficient assets to support themselves). I’m unsure that the children applying in this scenario would be effective.

Would be interesting to learn other members thoughts.

Carmen Cottingham
Cottingham Legal Wills and Probate Limited

(iain.cameron) #5

The court is not generally keen on facilitating tax planning, certainly in the case of gifts by attorneys.

Iain Cameron
Acer Legal