Can carer and beneficiary Greg protect his friend’s will from being contested?

What can carer Greg do to protect his friend’s will from being contested by her family?

Will they contest her will?

Greg is the live-in carer for an elderly friend, her legal guardian and a beneficiary of her will. He’s worried that his friend’s will may be contested by her brother’s family, and asks estate planning lawyer Rod Cunich what he should do.

•••

Q. Greg
I am the live-in carer and long-time friend of a lady who is 90 years old. She doesn’t have children and her husband died in the late 1990s. She does have a brother who lives interstate with his family. She sees them a couple of times a year. I came to live with her in 2011 after she broke a hip. The hospital wouldn’t allow her to go home to be alone so I moved in for six months to get her back on her feet. I am still here. She has had heart attacks and strokes since then.

She has made me her legal guardian and gave me Enduring Power of Attorney for everything. I am also the executor of her will and a major beneficiary. Her estate is not huge, but her house and land are worth a bit, though she took out a reverse mortgage so there is a debt to pay there.

After reading some of the articles on YourLifeChoices, I am concerned about how settling the estate might unfold when the time comes. I am concerned that her niece and nephews might contest the will. The will is very clear apparently, but I wasn’t aware of what being executor involved. Can you help?

A. Greg, your concerns are well-founded. It is in my experience that it is more likely than not that family will challenge the will in the circumstances you describe. If your friend saw an independent lawyer (one not associated with you) and you were not present when she provide instructions you have a much better chance of defeating any challenge.

It would also assist if the lawyer has extensive notes of conversations with your elderly friend recording why she has left everything to you rather than family. Lawyers don’t often keep sufficient or appropriate notes to deal with the issues that arise in these situations.

Finally, in most states, the legislation provides for a person like your friend to prepare and sign a formal statement outlining her reasons for preparing a will in the terms she has – again, this is a job for a solicitor with the necessary skills to prepare the document correctly.

If any of these things are missing and your friend still has mental capacity, I recommend that your friend re-do her will with an estate planning specialist lawyer and ensure each of the things I’ve mentioned are properly addressed.

Rod Cunich is a lawyer with more than 30 years’ experience and who specialises in estate planning. If you have a question for Rod, simply email it to: newsletters@yourlifechoices.com.au

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

RELATED ARTICLES





    COMMENTS

    To make a comment, please register or login
    MICK
    8th May 2019
    10:34am
    Really Rod?

    I might have though family SHOULD always be the benefactors of an estate unless it was clearly left to somebody else IN A WILL with strong reasons to justify this. I'm not talking about somebody who waltzes in a couple of years from end of life and sets up shop to claim an estate.

    The Will may be a compelling reason to distribute some of the assets to a third party but most should always go to family.

    You may want to avoid taking sides in this sort of dishonesty. Its bad enough that it happens at end of life but inexcusable that society should accept it as the norm. Its quite sickening behaviour from vultures picking at the bones.
    ozrog
    8th May 2019
    11:41am
    Totally disagree I'm estranged from my sister and in noway wanting her to have any of my estate and shes not in my will and i don't have to give a reason.
    KSS
    8th May 2019
    1:13pm
    Completely disagree that family should ALWAYS be beneficiaries of a will for no other reason than they are family. Why?

    The assets belong to the person making the will and are solely theirs to do with what they choose. Any non-dependent adult family member has no right to expect, demand or sue for anything and should not be permitted to do so!
    ozirules
    8th May 2019
    6:13pm
    ozrog and KSS are spot on. This subject comes up every few weeks on this site and I am amazed at people believing that they have the right to determine where some one else can dispose of their assets upon death. It's people like Mick that create the need for testators to waste time and money on expensive lawyers.
    MICK
    8th May 2019
    9:41pm
    Clearly out-gunned on this one.
    I've seen family hatred play out and it never ends well. Using an estate as the final knife in the ribs seems pretty harsh to me and I'd always think that family wealth should stay in the family and not go to leeches and vultures who arrive in the last days to pick up what should not theirs.
    Just my view though.
    Maggie
    8th May 2019
    12:00pm
    Mick, your message comes over as hasty and judgemental.
    Greg is open and upfront about not wanting to lose an inheritance.
    Let's look at what we do know from this letter.
    1. He and the woman he cares for have been friends for many years. We don't know how long but it could have been for 70 years....
    2. It must be a close relationship or she would hardly have accepted and continued to accept what will surely have been pretty intimate help at times.
    3. Greg's offer of help of live in help was for 6 months which has stretched out to 8 years. This must have occasioned major adjustments to his own domestic situation and life plans. There is a HUGE difference between 6 months and 8 years....
    4. We dont know where her family has been throughout all these years nor whether they have ever offered help or support!
    5. Greg may have enabled her to live happily in her own home instead of a dubious aged care place.
    Why don't we allow this man to get the legal advice he requested without immediately thinking the worst of him?
    World Prophet
    8th May 2019
    12:10pm
    I agree
    purplejan88
    8th May 2019
    1:14pm
    exactly right Maggie
    chris
    8th May 2019
    12:50pm
    based on what happened to me and my family, if someone contests the will, doesnt matter what you have done prior, it will be cheaper to give them a small amount rather than go through lawyers and courts. it will chew up the money VERY quickly at $300p/h for a lawyer and $1000 p/h for a barrister, then there court charges are even higher. even if you win the court case and get a judgement, you still cant recoup all your legal costs. the courts have a formula for it. best of luck
    Arvo
    8th May 2019
    1:22pm
    If a Will is disputed, Mediation is a mandatory process before any Court hearing in front of a judge. The cost of mediation may cost around $25,000 involving a solicitor, barrister and affidavit court lodgement fee.
    Anonymous
    8th May 2019
    4:10pm
    get the lady to take out an insurance bond and make you beneficiary...it then gets paid directly and has nothing to do with the will. i know this for a fact!
    Anonymous
    8th May 2019
    4:12pm
    further to this

    "Estate planning
    Insurance bonds may provide estate planning opportunities for some investors. When an investment bond is set up, you'll need to nominate a policy owner, a life or lives to be insured and beneficiaries. The policy owner may be the same as the life insured.

    If the last insured person passes away, the beneficiary receives the proceeds from the insurance bond tax free. If there is no nominated beneficiary, the proceeds will go to the policy owner or the policy owner's estate.

    Most investment bonds also offer a child advancement policy where ownership of the policy is able to be transferred to a child when they reach a nominated age. This can be a tax effective way to save for a child's future.

    If you are considering using investment bonds for estate planning, seek professional legal advice first."

    https://www.moneysmart.gov.au/investing/complex-investments/investment-and-insurance-bonds
    musicveg
    8th May 2019
    2:24pm
    My mum went through this, she got a good sum of money left by her friend for taking care of her for so long and she ended up having to give most of it back after it was contested by an estranged daughter and grand daughter, even though her friend was of clear mind when she made the will without my mum's presence and specifically said she did not want the money going to her estranged daughter who she had not seen for many years and who never cared for her. Better to give the money before they die.
    Paicey58
    8th May 2019
    2:34pm
    That’s exactly right. Cash it all up and give it to whom you want otherwise your will can be contested and very likely the family members will get the majority no matter what you write.
    Captain
    8th May 2019
    4:55pm
    My Father and Mother did not see or hear from my two elder brothers for more than 25 years (my brothers thought that my Father broke up the family - he was in the Army and was moved around a lot), so even though they took exception to my Father's occupation, they had no interaction with my Mother!

    When my Father died they both turned up at his funeral and demanded to know the contents of his Will. As is the right thing to do, all his assets went to his spouse. They still had no interaction with my Mother.

    When my Mother died some years later, both turned up at the funeral asking for a copy of the Will. As it turned out my Mother left them both out of her Will. They contested, I offered bugger off money, provided they sign a legally drawn up document saying they would never contact me or my other siblings. Surprise, surprise, for a handful of dollars, they both signed the document. None of us have heard from those two for more than thirty years.
    ChristineS
    8th May 2019
    5:16pm
    Sadly, just because something is written in a will, doesn't mean that the person's wishes will be carried out. Challenges can be made. I attended a seminar and the advice was similar to above - make sure the person writing the will explains WHY they have made their bequests, and WHY some people have not been left anything. Personally, I also agree with the idea to give money to your chosen people before you die, if you are in a position to do so - that way they benefit when they probably need it more, and you know it has gone to the right people. I am currently executor of my late father's will, and whilst there is only a small estate, and is straightforward, it is stressful and a lot of work.
    MICK
    8th May 2019
    9:53pm
    Its tough. Use a probate company when the time comes as one quarter of the cost of a solicitor.
    You are right about Wills being open to challenge. As things stand family members always come in ahead of vultures, as they should.


    Tags: money, will, contest,