A IF your mother made a Power of Attorney more than a year ago it is likely that she signed an 'Enduring Power of Attorney' in favour of your brother.

If she made the Power more recently then this it is likely she granted a 'Lasting Power of Attorney' in favour of your brother. The rules in relation to gifts for both are similar as follows:

As a general rule an Attorney does have power to make gifts. Therefore your brother is within his rights to make gifts to members of his family provided certain conditions are met.

Firstly, there must be no restriction or condition in the Power of Attorney itself which prohibits the making of gifts.

The person receiving the gift must also fall within specific parameters. The recipient must either be a charity or an individual who is related to or connected with your mother.

In this case, the recipients of the gifts would be her grandchildren who would comfortably fall within the parameters.

The gift has to be "of a seasonal nature". This includes the birthdays of both the donor (your mother) and the actual recipients (the grandchildren). Presents for specific festivals (eg Chanucah) would be included, as would presents given on a wedding anniversary.

It is generally considered that the presents given for, say, barmitzvahs, graduations, engagements or retirements are excluded from the scope.

The value of the gift being made must not be unreasonable.If your mother only has assets of £10,000 and the gifts being made by your brother to his children are of significant value (say, for example, £1,000) then it is arguable that the value of the gift is unreasonable.

If, however, your mother is a wealthy lady with significant assets, an otherwise large gift to the value of £1,000 to your brother's children may not be unreasonable.

Finally, the general commonsense rule (and certainly a question a judge would ask) is: 'Is the gift one which the donor (your mother) would have made herself?'

Basically, if the above conditions are all satisfied then your brother is not acting beyond his power and authority.

I am assuming perhaps that you are suggesting that your brother may be preferring his children and not others and may also be taking money for his own benefit.

If you have concerns about how he is acting or have actual knowledge that these gifts have been made outside of the above guidelines, your best course of action is to contact a solicitor specialising in this area of law or The Office of the Public Guardian directly.

* Details can be found at www.publicguardian.gov.uk

Q IF my wife divorces me will she still benefit from my Will?

A IT is surprising how many people intending to get married are unaware of the legal ramifications which accompany it.

For example, under the Wills Act 1837, the act of getting married automatically invalidates any Wills that a husband or wife may have previously prepared.

(This automatic invalidation can be avoided by including a 'contemplation of marriage' clause, which must name your future spouse, and state explicitly that you do not wish for your Will to be invalidated by the Act).

The Wills Act also provides relief for those who are in the process of divorcing. On the dissolution of a marriage - that is, following the decree absolute which is the final step in the divorce procedure - all references to your ex-wife are automatically removed from your Will.

Technically, your estate will now pass as if your wife had died before you: she will not be appointed your executor and will not receive anything from your estate at all.

(As with the automatic invalidation of a Will by marriage, you can however choose to insert a clause in your Will to avoid this effect and allow your ex-spouse to remain an executor or beneficiary of your Will as before).

Bear in mind, however, that, under the Inheritance (Provision for Family and Dependents) Act 1975, if your ex-spouse can prove dependency on you at the time of your death, she could lodge a claim against your estate for financial support.