‘Should I bargain on will?’

Colin* has cared for his parents for years and has been promised recompense in their will. However, he is concerned that his brothers will contest their wishes. He asks estate planning lawyer Rod Cunich for guidance.

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Q. Colin
Both my mother and father had a stipulation in their wills that I could buy their house from my two brothers for a nominated amount out of their final estate as I was an unpaid carer for both of them for a number of years.

I now believe my brothers will contest my parents’ wishes. The substantial money component  ($600,000) of the will is to be divided up three ways, but I was to be able to buy the house by paying $60,000 to each brother giving them the total of $260,000 each and me the house and $80,000 left over from the money component.

I was an unpaid carer for my parents for 20 years, a paid carer for my mother for two years and her power of attorney so far for 18 months as she is in a nursing home and I am still residing in the house. My brothers have never helped.

Although my parents always promised me a place to live if I stayed and helped them, I am concerned that the entire estate will be eaten up in a legal battle with my brothers and take years to settle. I thought I should wait until after probate to decide or else make a subsequent (more generous) offer to each of my brothers. I hope you can give me some guidance.

A. There is no ‘right’ approach here. It is almost impossible to second-guess how your siblings will react once your mother passes away.

The only suggestion I can make is that (when appropriate) you open up discussions with your siblings in an attempt to minimise the chances of costly litigation. You shouldn’t pre-determine what you will concede to avoid litigation.

Your siblings might be open to negotiating a deal that is better than what you currently propose. Remember, they also face large legal expenses and long delays if a dispute occurs, so they may be more accommodating than you imagine.

I also recommend that you seek the advice of a specialist estate planning lawyer to assist you in the preparation of your submissions to your siblings, so you are prepared when the time arrives. You can find accredited specialists through your state law society or law institute.

* Not his real name.

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 [email protected]. His book, Understanding Wills and Estate Planning, has recently been updated and is available from all good bookshops.

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Disclaimer: This information has been provided by Rod Cunich and should be considered general in nature – legal advice should be sought.

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