What if he writes me out of his will?

Legal expert Rod Cunich helps Rob deal with threats of disinheritance.

older man threatens to write his son out of his will

Even though Rob has cared for his father for years, Rob’s dad keeps threatening to disinherit him. He’s asked legal expert Rod Cunich how best to handle this situation.

Q. Rob
My father keeps threatening to write me out of his will, even though I have looked after him for several years. I don't think he has his full mental capacity but he won't visit a medical professional to be assessed. Is there anything I can do to protect my rights in his will?

A. First, let’s understand what capacity is required to write a will, as it’s much more basic than is commonly believed. In simple terms, your father only needs to understand what assets he owns, who he wishes to leave them to, and who he is leaving out from those who may have a claim on his estate. If he understands those matters when he signs his Will, then the Will is likely to be valid. Even people with dementia can execute a valid Will in a lucid moment if they meet this test at the time they sign the document. If he doesn’t, it is not valid. One option to head off a new Will might be to apply to have a guardian appointed over his personal and financial affairs on the basis that he lacks capacity. Search the internet for ‘Appointment of Financial Guardian’ and you’ll find that your local State authority can assist in this regard. You do not need a solicitor to do this. You’ll have to provide evidence of his conduct to prove incapacity and through the relevant tribunal you can obtain a medical opinion.

But what if he does sign a new Will? If he does, you have two possible remedies and both involve challenging the Will once he passes away. First, you could assert he didn’t have capacity to make the Will. But absent medical evidence means you’ll have had to maintain a diary to record his behaviour and level of cognitive understanding to help prove his mental capacity.

Given the test referred to above, it is very difficult to prove mental incapacity in the absence of medical evidence, but the more evidence you have of impaired cognitive function, the better your chances. Secondly, as the son, you have a statutory right to challenge the Will on the basis that, in all the circumstances, your father failed to make adequate provision for you.

The court will examine a comprehensive list of issues, including the care you provided, the competing interests of other beneficiaries and their respective financial circumstances, and if satisfied that you should have received an inheritance, they have the power to re-write the Will to make appropriate provision for you.

This type of application is very common and the courts are quite skilled at working out ‘what your father should have done’. You’ll often find competent lawyers who will conduct this type of case on the basis that they only charge if you are successful.

The information in this article should be considered general in nature and legal advice should be sought. This information has been provided by Rod Cunich, author of Understanding wills and estate planning.  Rod can be contacted via his site Rodcunichlawyer.com, where you can learn much more, and also buy a copy of his book.

Rod Cunich is a lawyer with over 30 year of experience who specialises in estate planning. If you have a question for Rod, simply email it to newsletters@yourlifechoices.com.au

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    COMMENTS

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    Janran
    7th Apr 2017
    12:11pm
    Would Rob also be compensated or remunerated somehow, for caring for his father for years?
    Crafty
    7th Apr 2017
    7:22pm
    I don't think a parent can favour one child over another in a will. If you are left out of the will, keep an old copy and contest the will.
    BTW. I am the only sibling of 6 who spent seven years in care and several years with the father. Age 12 - 15 with mother after father dumped me on her. Age 16 was spent in care then I was on my own. The oldest lived with the grandmother, the 3 boys spent between 3 and 6 months in care prior to mum getting them. The youngest and the 3 boys mostly grew up with mum. I received nothing from the fathers' estate as he remarried and his wife had two Sydney lawyers for sons.
    I expect an equal share of my mothers' estate and I don't care how much of the estate is spent on legal fees.
    sunny
    7th Apr 2017
    12:53pm
    Keep a diary?, don't you mean CCTV his every move, with a mind detector documenting his every thought. You selfish leech of a cuckoo. Does everybody want a reward for doing something his/her parents did out of love?
    His choice surely, if he has dementia, he doesn't know, and your willing to challenge the courts over this. Money/real estate grabbers.
    Janran
    7th Apr 2017
    2:04pm
    I'm thinking more about a beloved parent who has lost their capacity to be themselves, yet still knows how to be frustrated, sometimes abusive and cranky with the world. They take it out on the very ones who ARE caring for them, simply because they are the only ones they have contact with.

    The sadness of this is hard enough for all involved, but terrible for the child who has sacrificed a lot to be the carer, while their absent sibling(s) become the golden ones to the demented parent, because they're not there to do the hard yards. Changing a nappy for a small child is a whole lot easier than cleaning up a belligerent and willful adult who still thinks they're in charge and who has lost the ability to be grateful.

    It reminds me of "Mother and Son", that wonderful, poignant and yet hilarious comedy with the late Ruth Cracknell and Garry McDonald. All the Mother could talk about was how wonderful Robbie was, the absent brother who was a dentist, who cheated on his wife and was a terrible person compared to the long suffering son who truly cared for her. Robbie would turn up with flowers and Mother would declare "Oh Robbie! You're wonderful! At least I have ONE son who shows he really cares and loves his Mother! Not like him!" (pointing to Arthur). It was "Oh Robbie this" and "Oh Robbie that". It has become a saying in our house, whenever anyone is given credit at the expense of someone more deserving "Oh Robbie!"
    Crafty
    7th Apr 2017
    7:24pm
    I'm entitled just as much as my siblings.
    Crafty
    8th Apr 2017
    5:06pm
    Sunny, would your parent say that to you? I hope they do so you know how hurtful it is.

    For me, an inheritance will mean I was loved as much as my siblings.

    Only a self entered, ungrateful, uncaring parent would say that to their child.
    buby
    11th Apr 2017
    8:46am
    yes i agree with you sunny, but you know Crafty, when they start bordering on dementia, do they know what they say. they too can feel hurt by the child's actions. When all that child is interested in is the money, the Real estate!!!
    and they do not show them real care.
    I mean when the children were small how quick they forget who whipped their bum, who kept them fed, and gave them the clean clothes they wore, and a roof over their head, i'm sure the 99% of parents had their child's care in their innermost thoughts.
    What i have learnt is that Children ARE so thoughtless these days.
    they aren't supportive of their parents, they degrade them when parents need them the most. I'm sure the parent does feel that.
    WHO needs a thoughtless child!! a selfish child is not what they need. Perhaps The older Children need to do a course on how to treat their parents better!!!
    pedro the swift
    7th Apr 2017
    1:36pm
    If he is threatening to write him out of his will, then who will be the beneficiary? Maybe another family member is influencing the father to do this.
    it doesn't mean Rob is a money grubber, maybe it is another person.
    casey
    8th Apr 2017
    8:00am
    I have seen this so many times. Why, when someone dies does it bring out the worst in people. The fighting and squabbling. the rifts it causes in the family afterwards. Can't people respect the wishes of others.
    Crafty
    8th Apr 2017
    5:10pm
    Again, as I have said to others, imagine how you would feel if your parent said their leaving everything to your sibling.

    If the parent respected and loved all their children equally, this would not be an issue. Equal share to all.
    Crafty
    8th Apr 2017
    5:10pm
    Again, as I have said to others, imagine how you would feel if your parent said their leaving everything to your sibling.

    If the parent respected and loved all their children equally, this would not be an issue. Equal share to all.
    buby
    11th Apr 2017
    8:52am
    It sorta happened like that to me Crafty.
    My father died i was but 5yrs old. i was left with a large sum, as well as my mother, and it was supposed to go into a trust fund, and stay there till i reached 21.
    but come of age, and my mother said it was there. ONLY to find IT was NOT. GONE it was. Whose fault would that be.
    I was told that if my mother went to Trustees, it would be given to her as she needed it. But because she had NO english under the belt.
    She didn't even comprehend what she was doing. Somebody orchestrated that. Who thats another story! and in the mean time, she would nag me to death about getting my trust fund so i could at least buy myself a home?
    It was a real BIG mess. and from what i can gather my mother had lots of money, but too busy paying the bills that the stepfather wouldn't. HE was an alcholic, HE spent nothing on family, he spent on his own daughter, while I went without!. SO i can't prove anything, and nobody knows what happened!! MISSED out again mmmm
    water greg
    8th Apr 2017
    8:00am
    I think this is a terribly selfish post. Where is there any LOVE in this situation. No doubt the father raised the son from a baby isn't he entitle to expect the son to reciprocate at the other end of life, no strings attached
    Crafty
    8th Apr 2017
    4:37pm
    Since when is one sibling more entitled to an inheritance than another. The parent should not be playing favourites. I think the fellow is stellar to care for this self centred ungrateful father who obviously upsets his son on a regular basis. Any caring parent would not play this hand. Put the bastard in a home or better still, let another sibling take of him.
    Jannie
    10th Apr 2017
    11:08am
    Disagree with you water greg. Children do not ask to be born into this horrible world we now live in, so it is the responsibility of the parents to finance and care for their children, they wanted to have them so tough they have to suffer. As for the later years one can only hope that ones children would take care of us, but if we have not reared and cared for them in a loving way we cannot expect them to offer their help.
    buby
    11th Apr 2017
    8:53am
    INdeed Jannie, but you know if your married and it all becomes dysfunctional, it can all turn UPside down? and stuff you up for LIFE!
    KSS
    8th Apr 2017
    9:31am
    This is a perfect example of the fact that death brings out the worst in people. This man is clearly only caring for his Father in the expectation of an inheritance. Should that not be forthcoming he wants to know his rights! Wow! If he can't care for the family member without thoughts of reward, perhaps he shouldn't be caring for his Father at all. Perhaps his Father knows this and us the reason behind the threats of disinherited his son
    Janran
    8th Apr 2017
    12:17pm
    I am astounded by the posts here - judging the son for not being more altruistic.

    There's nothing in the story to suggest the son is only caring for his father so he can claim an inheritance. We don't know if there are other siblings, shirking any responsibility for the father's care.

    Nor do we know if the father is mentally competent, because he refuses to be assessed. This refusal makes it difficult for any carer, with no evidence for the carer to be able to apply for respite. It traps the son into caring for the father, and meanwhile the father seems to be unappreciative of the care the son is providing. So the father is acting illogically, which suggests he may well be mentally incompetent.

    Either that, or he is just a grumpy old man that can't be pleased with anything. Showing gratitude goes a long way for a carer.
    Crafty
    8th Apr 2017
    4:55pm
    Hear hear Janran.

    The son also loses a lot by way of income, social activities and self esteem having a father like him. Again I say, a loving, caring parent would not say that. It's like saying 'I don't love you as much as your siblings'.

    I'd like to know how you KSS would feel being told this on a regular basis by your 'beloved' parent. What if your parents gave everything to one sibling, not you. How loved and appreciated would you feel.

    'Thoughts of reward'. Are you kidding me? He is entitled.

    Not all parents cared for their children, not all parents are good.
    KSS
    8th Apr 2017
    5:57pm
    "I'd like to know how you KSS would feel being told this on a regular basis by your 'beloved' parent. What if your parents gave everything to one sibling, not you. How loved and appreciated would you feel."

    How do you know I wasn't in exactly that position Crafty? You don't so keep your personal comments to yourself.

    The difference is I did NOT seek legal advice as to my 'rights'. Nor did I expect any inheritance.

    And there's that 'E' word again! NO ONE is ENTITLED to anything. It is NOT yours to expect. An inheritance is to be freely given by the owner NOT to be expected or demanded by the would be heir.
    Janran
    8th Apr 2017
    6:01pm
    Yes, I agree Crafty. The son is doing a stellar job to care for his father. The father would probably be in a Home if it weren't for the son's care, I suspect.

    I have seen this quite a bit, where one sibling, usually female, sometimes a daughter-in-law, does all the running around (doctor's appts, buying the prescriptions, taking the parent on outings and spending petrol all the while), while the more "successful" siblings are far too busy (making money) to do such errands.

    The "poor" relative is given little credit for their efforts and I've even heard the rich ones saying condescendingly "It gives her (the poor sibling) something meaningful to do", almost like they're doing her a favour by letting her do all the hard yards, while negating any chance of improving her employment or financial circumstances. And if she dares speak up to suggest they change "the arrangement", well, she's rocking the apple cart and she's being selfish.

    The worst examples of the "too busy siblings" have been told to me by my sister, a nurse who has worked in aged care for many years. The terminally ill and/or demented aged parent has a bad turn and is transferred to the hospital, to the relief of the constant carers, hoping now the parent can finally die a peaceful death with dignity, after years of being propped up in a bed with a very poor quality of life, not even recognising the caring family for years.
    On hearing of the parent being on their deathbed, the rich sibling flies back from overseas, demanding that all possible things must be done to save every last second of the parent's miserable life. "Yes, more tests and every life-preserving drug must be administered", even accusing the others of not caring enough.

    If a child is prepared to be "hands-on" caring for an a dependent parent, I would guess their heart is in the right place. That said, some people are just horrible and they abuse the parent but more often the parent abuses their carer, due to dementia.
    Janran
    8th Apr 2017
    6:14pm
    Good on you for caring KSS, but why did you immediately assume the worst of the son by saying "This man is clearly only caring for his Father in the expectation of an inheritance."?

    I reckon a carer is definitely entitled to know where they stand in an inheritance, considering they have given up their time and potential wages to do the caring. Let's say for example, that the Father wants to go to Disneyland, or some other very expensive holiday. The son needs to know if they have the financial means to do such a thing and where will he be left if he shells out for his own expenses? How can the son do any financial planning for his own retirement while there's the threat of being disinherited hanging over his head?

    If the Father thinks he's being treated badly by the son, he should put himself into a Home.
    Crafty
    9th Apr 2017
    2:37am
    KSS - entitled - not entitled, i will agree to disagree.

    Every child is ENTITLED to the love and care of their parents.

    every sibling is ENTITLED to be loved equally.

    Every sibling is ENTITLED to the same treatment as the other siblings.

    Every sibling is ENTITLED to the same inheritance as the other siblings.

    I'm a forgotten Australian and Im ENTITLED to have an opinion. I'll make whatever comments I like, when I like and however I like.
    Retired Knowall
    11th May 2017
    10:30am
    Crafty, I can see why you would be left out of anyone's will.

    9th Apr 2017
    7:48pm
    There's another side to this. A mother who had two children to two different fathers left most of her estate to one because that child had forfeited her inheritance from her father to care for the other when the second husband reneged on his obligations. But then the child of the second husband inherited a lot of money from her father. The mother then reasoned the child who had lost her inheritance from her father should be favoured in the mother's will. Additionally, that child had cared for the mother and invested in renovating the mother's home, while the child who inherited a large sum abandoned the mother. Well, the courts overturned the mother's will on the grounds that despite inheriting a large sum, the younger child - who had faked disability and never worked and had defrauded her mother of a large sum - had less money than the disinherited older child who had worked very hard and lived frugally. So ultimately the younger child got 90% of the combined estates of three parents and the older got 10% - all of which went to lawyers to defend a malicious and very dishonest claim. In the end, the system doesn't really offer any defence. If the estate is relatively small, it hands a loaded gun to anyone who wants to challenge a will and the executor either gives in to unreasonable demands or loses it all in legal costs. It's a disgraceful system!
    Crafty
    9th Apr 2017
    8:52pm
    My oldest half sister who was brought up by the maternal grandmother, had the house signed over to her before she died. 40 odd years ago.

    My younger half sister was left a property worth over $800k approx 12 years ago by her father. She has nothing left but now lives with our mother. She has maybe worked 10-15 years. She is 50, 10 years younger than me. Mum paid for a camper van for her. She is good to mum though.

    My husband fixes things, puts cupboards up and I have packed and moved her twice, take her on outings regularly and other odds and ends.

    The middle brother received half mums property approx 10 years ago worth $450k.

    The youngest sister and this brother were her favourites as I was often told and that I was only jealous.

    If our mother states in her will that we all receive equal share, I would be happy even if one sibling contested and wanted more, it would not bother me.

    Sometimes it's not the money, sometimes it's what it represents.

    It's my mothers last chance to say I was valued as much as the others. I would be extremely hurt if she said I was disinherited. It's an extremely horrible thing to say to your child, it's like saying 'I don't love you' or in my case 'I never loved you'.

    I'm sorry this subject has upset me.
    Anonymous
    12th Apr 2017
    1:05pm
    Yes Crafty, it's what it represents. For someone who sacrificed and suffered so that a younger sibling could be protected from hardship caused by her father, the mother's will represents justice and appreciation. The sibling's challenge represents selfishness, greed, and lack of appreciation. It represents disregard for the needs and moral rights and disrespect for the mother's desires. Mother love is not in question, because the mother explained her reasons in detail. But sibling love clearly doesn't exist, and nor does appreciation for enduring decades of hardship for the sibling's benefit. That hurts.

    9th Apr 2017
    9:25pm
    ''The court will examine a comprehensive list of issues, including the care you provided, the competing interests of other beneficiaries and their respective financial circumstances, and if satisfied that you should have received an inheritance, they have the power to re-write the Will to make appropriate provision for you.
    This type of application is very common and the courts are quite skilled at working out ‘what your father should have done’. You’ll often find competent lawyers who will conduct this type of case on the basis that they only charge if you are successful.''

    I absolutely disagree with the above. It may be true if you can afford to go to court. But initially you will be told to try to settle, and if the estate is small, you may as well give in to any greedy unconscionable claimant who has no moral rights, because you'll lose it all anyway in legal costs if you take it further, as well as enduring a year of hell.

    No win no pay lawyers are unconscionable and don't give a damn about justice or fairness or decency. They care about nothing but winning. There merits of the case don't enter into it. The executor and other beneficiaries don't even get to respond to a stinking pack of lies in a claimant's affidavit. All they get to submit to prior to a ''settlement conference'' is a summary of estate assets and the other beneficiaries' financial circumstances. The ''settlement conference'' is a total farce. You don't even get to speak to the other side or their lawyer, or to hear what your lawyer is saying. It's the most disgracefully unjust system imaginable and every day it's screwing people over in favour of greedy, dishonest thieves who see a change to grasp money for nothing - and whose prior life of bludging on the system advantages them in their claim against hard working, ethical named beneficiaries.

    Actually, the party left out of the will is likely to be the fortunate one. They get to make a claim - usually with minimal or no risk. The poor old named beneficiary has no defence.


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