Gift Giving by someone mentally incapable – Part 7
I’ve covered a lot of ground in the earlier blogs, so the only other thing that I can currently think to add on the issue of gifts is the point relating to the estate on death.
If someone has a Will or even if they don’t then it is helpful if the Attorney or Deputy has some knowledge of what is says. The Will might just say something like “everything divided equally between my children”, so whatever the estate consists of, however big or small it is, there is a place for it to go on death (assuming the children are still alive!).
The rules of intestacy (when someone doesn’t have a Will) divide the estate between some specific family members and who they are will depend on what family members are living at the date of death. I won’t go into those details here; they can be complex to explain.
But what happens if the Will says “my diamond ring to my daughter” and the ring is sold by the Attorney, what does the daughter get then? Usually nothing, the gift will fail, so the daughter might be somewhat annoyed and hence the purpose of some kind of knowledge about the contents of the Will would be helpful.
Solicitors are often reluctant to disclose a full copy of the Will to the Attorney, if they don’t already know it and they feel that they owe a duty of confidentiality to the individual right up until their date of death, when that duty passes to the Executors. But that should not prevent them making the point that there is a gift of the diamond ring to someone and that therefore the ring should not be sold in order to protect the ultimate wishes expressed in the Will. They don’t have to say who the ring goes to, just that there is a gift to someone, thereby hopefully protecting the ring from loss or sale.
Lots of family members I’ve met come to me with a copy of their parent’s Will, so they know exactly what the gifts are, but that is not always the case. So the decision to disclose relates to s.5 Mental Capacity Act, where someone is acting in the best interests of the person who lacks capacity. Therefore whoever is choosing to disclose some or all of the contents of the Will have to balance what is in their best interests with their duty of confidentiality, which is why the compromise to disclose just the things that are specific gifts is likely to be in their best interests, whilst still maintaining confidentiality with the rest of the contents of the Will.
Sometimes it is not always possible to keep everything that is ultimately going to be gifted, if there are for examples lots of gifts of furniture and the individual is going into care. Then it may be that those gifts are made early, especially if they are personal possessions, as they are not taken into account for care fees, so the gift of them cannot be a deprivation of assets. This would mean not just disclosure that there is a gift, but to whom the gift goes.
It is highly likely that this would be considered acceptable in terms of s.12, as fulfilling their ultimate wish would be considered in their best interests; it is just an issue of timing! Whilst this could lead to dispute by someone who wanted these gifts, if they weren’t given them in the Will, then they wouldn’t get them later and the dispute could always arise then.