Should Colin bargain with his brothers on will?

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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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9 Comments

Total Comments: 9
  1. 0
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    For someone to contest a will shows a total lack of respect for the person who made it. Whether they agree with the will or not is irelevant. The person who made it is the owner of the property and assets, and it is up to them to decide what happens after they die. I have seen so many family fights and disputes after someone dies. Happened to me. I stood back and ignored the lot of them, and decided I was better off having nothing to do with them after, and let them fight and take what they wanted. As they say you can choose your friends but not your family.

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      Yes it appears in many cases blood is not thicker than water when it comes to money

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      Colin* In the late nineties my m-in-law died intestate. They were a few children who couldn’t decide how to look after the invalid pensioner youngest sibling.. The fight started. The estate was worth $157,000… 25 years ago and 25% of that went to the legal eagles..on both sides. That area of Melbourne is now in excess of $1,500,000

      Definitely take Rod’s advice because your situation is the same as my younger b-in-law who was living in the house, but the others 1/3 fence sitters, 1/3 wanted the money and 1/3 wanted to look after him.

  2. 0
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    Take a leaf out of Robo. Make an invoice to parents names for the years you were a carer but didn’t get paid.

  3. 0
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    As the son who has cared for his parents for 20 years, it would seem very reasonable that you would stand to inherit a larger share of the estate. The others will inherit quite a good amount each and have no grounds for complaint. However, that won’t necessarily stop them from contesting the will. It very much depends on your relationship with your brothers, and how you have got along over the years as to whether you approach them about this. If they wish to go to court there is not much you can do except warn them that they could stand to lose a lot in costs should they lose the case. Unless there is something compelling which has not been mentioned here, I can’t see them winning.

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      Sometimes things are not how they appear.Being a carer does not give you any entitlement to a larger share of the estate.I am aware of a carer who used his position to have his parent subsidies his drinking habit.Then when the parent developed dementia he managed to get the will changed to become sole beneficiary.Commonsense states that will should be contested (and was).

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      Sometimes things are not how they appear.Being a carer does not give you any entitlement to a larger share of the estate.I am aware of a carer who used his position to have his parent subsidies his drinking habit.Then when the parent developed dementia he managed to get the will changed to become sole beneficiary.Commonsense states that will should be contested (and was).

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      Agreed Circum. That’s why I mentioned the possibility of an unstated circumstance which could change things. I was answering on the basis of facts as stated. But some compensati on surely would be due for loss of wages if the son was unpaid carer for a large number of years after leaving his paid employment.

  4. 0
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    It seems a will is not worth the paper it is written on these days. The number of people whose wishes are disregarded by courts is very disappointing.


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