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.

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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: [email protected]

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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