Trust to receive legacy for beneficiary without capacity

Client with dementia (no capacity) and no assets except a joint current account with his wife (under £1000). His son from his first marriage recently died intestate and he is due to receive half the estate (approximately £45,000). The solicitors dealing with the estate are demanding that the wife obtain a deputyship order in order to give a valid receipt for the money. The money will be gone in care home fees within 18 months and a deputyship application seems disproportionate for both time and money.

I have suggested a trust is set up to receive the legacy but does anyone have any experience of this or an alternative?

Lorraine Burkey

In my experience (Jamaica), we generally require a committee-ship similar to a deputyship to receive the assets belong to persons with no capacity. As the court is really responsible for these persons it is important that the court sanctions the appointment of persons to manage their affairs and they can provide the best receipt for the assets.

I would suggest the application for the deputyship with an interim Order (if possible) that the money not be paid over pending the completion of the application for the deputyship.

Kedia Delahaye

I think deputyship is the best and safest route, but the old case of Pothecary v Pothecary (1848) 2 De G. & Sm. 738 suggests the executors could just appropriate the client’s share and hold it on bare trust for him.
But more fundamentally, if your client has no capacity (to do anything?), how is he your client?
Alexander Learmonth

Alexander Learmonth
New Square Chambers