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.
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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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