‘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 his brothers will contest their wishes. Estate planning lawyer Rod Cunich offers guidance.


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.

Read: What happens to your digital data when you die?

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.

Read: What you need to know when selling a deceased estate

Your siblings might be open to negotiating a deal that is better than what you currently propose. Remember, they also face big 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. His book, Understanding Wills and Estate Planning, is available from all good bookshops.

Disclaimer: All content on YourLifeChoices website is of a general nature and has been prepared without taking into account your objectives, financial situation or needs. It has been prepared with due care but no guarantees are provided for the ongoing accuracy or relevance. Before making a decision based on this information, you should consider its appropriateness in regard to your own circumstances. You should seek professional advice from a financial planner, lawyer or tax agent in relation to any aspects that affect your financial and legal circumstances.

Rod Cunich
Rod Cunichhttps://rod-cunich.squarespace.com/about
Rod has over 30 years’ experience in consumer and business law, and specialises in wealth protection, business succession and personal estate planning. He has been a director of numerous companies including Unconventional Conventions and NFPs, with clients also benefitting from Rod’s first hand commercial experience. Rod is author of the acclaimed text ‘Understanding Wills and Estate Planning” and, prior to joining Keypoint, was National Practice Group Leader of Slater & Gordon’s Wealth Protection and Estate Planning division.


  1. It’s so wrong when parents wishes are contested. Should not be allowed. (my opinion 😊)
    In this case couldn’t the mother, (since she is living in aged care), couldn’t she gift the house to her son now, (stamp duty would still be payable, & this could be paid out of the $600k). And then the remaining funds (approx $580 could be left to the other 2 brothers).

    • It depends if the mother is of sound mind to change her will or sell the house. A doctor evaluation is required to prove that she is of sound mind. However this does not stop the brothers from contesting the will after she passes. Since the brothers did not share in the care, I suggest Colin firstly determines what the brothers want and he engages a good solicitor to advise of the legalities.

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