Can my disrespectful brother be removed from mum’s will?

You couldn’t ask for a worse son, but can you block his inheritance?

Can my disrespectful brother be removed from mum’s will?

A mother wants to remove her disrespectful son from her will. Estate planning specialist Rod Cunich explains the repercussions of such actions, as well as how to get around them.

•••

Q. Michelle
My mother has a very disrespectful son who constantly upsets her and accuses her of favouring one over the other. He expects to talk and treat my mother without respect and for her to be oblivious to this and accept this ill-treatment. He has always looked after himself and only took notice of our parents after his marriage separation. He has denied any assistance my mother has given him, verbally and physically attacked my mother in the past, and continues to verbally attack her even though he knows her health is deteriorating.

He has taken money off my mother and gambled it away, telling her it was to help pay for his divorce, and he has coerced money from her for his second marriage. He constantly claims my mother says nasty things about him. He recently upset her by not visiting her on Mother’s Day, and has embarrassed her in front of his second wife and her family. These are just some examples of his behaviour towards my mum.

And he is now threatening to contest mum’s will if he is not included.

My mother wants to take him off the will, but wants to protect my sister and I from him contesting. What steps can she take?

A. Your mum needs to get busy, but first she needs to know that there is nothing she can do to prevent your brother challenging her will. The law gives him a right to do so if he believes he wasn’t adequately provided for.

This doesn’t mean he’ll be successful, but he has the right to make the claim. He has to prove to the court that he was not adequately provided for in all the circumstances.

When reviewing such a claim, the courts look at about 20 different issues, and yes, your brother’s past behaviour is relevant and very important, but not decisive.

One of the great difficulties often faced in such circumstances is proving all the bad behaviour. If it is proven, then other beneficiaries stand a better chance of fending off such a claim.

So, here is the challenge – your mum needs to see a specialist lawyer to help her draft a statement in accordance with the law in your state or territory, setting out in detail all the past bad behaviour, including the attachment of copies of any relevant documents that support her assertions.

I recommend the statement be prepared in the form of a statutory declaration or affidavit, as they enjoy a level of recognition by the courts which is better than a mere statement.

This document can then be used in evidence in court once your mum passes away. It will give the other beneficiaries the best chance of fending off a claim by your brother.

That said, the courts will still take into account and balance all the other factors before making a decision.

At least such a statement maximises your mum’s estate’s chances of proving the bad behaviour. Failure to make such a statement could result in a court finding ‘no evidence’ (or weak evidence) of the behaviour complained about, and therefore discount the bad behaviour as one of the matters it has to take into account.

Another thing to be clear about is that leaving a ‘token’ gift to you brother will have no impact on his rights. It is an ‘urban myth’ that making a small gift to someone like your brother will prevent a claim. It doesn’t.

Another reason why your mum should see a specialist is that it may be possible for her to structure some of her financial affairs in such a way that some assets bypass her deceased estate and go directly to beneficiaries, without being exposed to a challenge while in the estate. A simple example is to set up joint bank accounts, or, if there is superannuation, use a binding death benefit nomination directing payments to individuals rather than her estate.

Achieving such goals requires a careful examination of your mum’s financial affairs and an understanding of the succession laws in you state, as the laws vary from state to state and what is possible in one may not be possible in others.

Rod Cunich is a lawyer and author with more than 30 years’ experience who specialises in estate planning. If you have a question for Rod, simply email it to newsletters@yourlifechoices.com.au. His book, Understanding Wills and Estate Planning, has recently been updated and is available from all good bookshops.

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    COMMENTS

    To make a comment, please register or login
    casey
    6th Nov 2019
    10:36am
    So why does'nt she put everything in her daughters names now.
    Rae
    7th Nov 2019
    1:37pm
    Sensible people will be doing that at least 5 years before retirement if they know they can trust the kids. I know people who have done it because they don't trust the government anymore.
    LarryFine
    6th Nov 2019
    10:41am
    My understanding is that it costs about $300,000 to contest a will.
    This usually tempers any ambit contest with
    out adequate evidence or grounds to contes
    Arvo
    6th Nov 2019
    12:15pm
    You can contest a deceased's Will through The Family Provision Act in your state. A family provision claim is an application to the Supreme Court of New South Wales for a share or a larger share from the estate of a deceased person.
    You can make a family provision claim if you: are an 'eligible person', and. have been left out of a will.
    The first step is to get a Barrister who specialises in Will disputes, the barrister will refer you to a Family Law solicitor specialist who will represent you.
    Secondly, be prepared to go through a Mediation process of negotiation, first. This should set you back about $25,000 if you lose or it may come out of the Estate if you win but not necessarily, depends on what your barrister gains for you, the cost may have to come out of your portion won.
    Thirdly, if the Settlement of the Mediation offer is not adequate, your barrister will advise whether the matter should go in front of a judge in a court room hearing. Depending on, how long this process takes ,the cost could be another $25,000 to $100,000 or even more , so you have to weigh up how far you can go and how much you can afford. A cost of $300,000 would only reach that high if the case was very complex and if it involves a claim of many millions.
    However, if the claim is for sums larger then, say, $750,000 then a question arises whether it is a true case that falls under The Family Provision Act for adequate provision or the intention of an economic (unfair) claimant.
    Remember this, the greedier you get, so do your legal fees.
    Snowflake
    6th Nov 2019
    12:12pm
    I witnessed a contested will and there was virtually nothing left after the lawyers took their fees. Not only that the son, who was the beneficiary died on the operating table at the age of 29. He was pretty unhealthy but I would imagine the stress didn't help.
    Personally, I don't think you should be allowed to contest wills if proven that is the real wishes of the person making out the will and is not done under duress.
    Arvo
    6th Nov 2019
    12:53pm
    Snowflake- "the real wishes of the person making out the will' ?

    "Real reasons" reflect the real mental capacity of the testator and can be challenged, especially under The Family Provision Act if the Will does not provide adequate provision.

    Best way to avoid shit fights about deceased estate between immediate family members is for the testator to be of crystal clear sound mind when writing a Will.

    Leaving the son or daughter out of the Will is not 'sound mind'.

    After all, the children didn't ask to be born, the testator made that decision to give them life and a living and he/she owes the children a provision out of the estate irrespective how the character of the children turned out.

    As one notable judge remarked, "it is of no concern whether the claimant will spend the claim on "wine, women or song", the concern is, "did the testator's will leave an an adequate provision for the claimant?". Ipso facto!
    ozirules
    6th Nov 2019
    4:35pm
    I'm with you Snowflake re contesting wills. Why Arvo is leaving some one out of the will 'not of sound mind'.
    The statement 'being left out of a will' is a furphy, you weren't left out you were just not put in as the author of the will did not see fit for whatever reason to allocate you a share of his/her personal assets. A persons last wishes re the dispersal of assets should be respected regardless of whether there is disagreement between greedy would be beneficiaries.
    Paddington
    6th Nov 2019
    9:57pm
    You include everyone to stop the likely fight when you are no longer there to referee. They get their share of money but that does not mean they will be included in the love and support of the rest who have been decent offspring.
    Chris B T
    6th Nov 2019
    3:00pm
    The Mother could give / use up all her assets while still alive.
    If not receiving OAP/Part OAP transfer to other Children.
    Can't claim anything if nothing is there to claim or reduce to insignificant amount.
    Priscilla
    6th Nov 2019
    7:15pm
    What is the point of making a will if your wishes are not adhered to? The law needs to change to reflect the wishes of the person making the will otherwise why bother? I think this law is there to make lawyers rich not to make sure the will instructions are carried out to the letter.
    jaycee1
    7th Nov 2019
    9:19am
    If she owns her house get a lawyer to make up a bill of sale in her daughters names - they pay her a small amount $5 each and the house is theirs. But she has a proviso added to the bill of sale stating that she is able to live there as long as she likes and that they [or anyone else] can not sell it till after her death.
    She can also gift anything else she wants to her daughters now and 'borrow' it back from them until her death.
    A good lawyer would be able to advise on how to do this.
    Tarabelle
    7th Nov 2019
    10:37am
    To those who advocate "side stepping" by disposing of estate assets proir to death.......I raised this question with lawyers when having my will drawn up. I was told that if you were to do this, and the will is contested, the dispersal prior to death can be seen for what it is by the court, and not only quashed but seen as a "crime". The beneficiaries could be in for all sorts of hell. The laws re wills is a mine field, and is made more so by the differences state to state. Those who have done the wrong thing all their lives, claim their right to then benefit from your death. Unfortunately the courts seem to agree with them......this is in keeping with the attitudes of today..... do nothing to help yourself but demand everything from Govt, your parents...alive or dead, and cruise through life on the backs of others.
    Chris B T
    7th Nov 2019
    2:25pm
    Could this "Lawyer" give you a Contested Case in Recent Times.
    That the outcome was what you Stated.
    There is a time line.
    There is a fee for service who is going to Pay that.
    Who is going to be charged, the the Dead Person giving away or using there assets a lot of What If's.
    Blossom
    14th Feb 2020
    10:32pm
    I believe the laws may not be the same in every state. Your Mum can put a letter with her will stating the reasons for her decision. I copy of the letter can also be kept with her copy of her will I doubt that would not stop a will being contested. I was told it has to be done by a specialist lawyer. You could end up with a debt and gain nothing at all.
    Blossom
    14th Feb 2020
    10:32pm
    I believe the laws may not be the same in every state. Your Mum can put a letter with her will stating the reasons for her decision. I copy of the letter can also be kept with her copy of her will I doubt that would not stop a will being contested. I was told it has to be done by a specialist lawyer. You could end up with a debt and gain nothing at all.


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