Even though Rob has cared for his father for years, Rob’s dad keeps threatening to disinherit him. He’s asked legal expert Rod Cunich how best to handle this situation.
Q. Rob
My father keeps threatening to write me out of his will, even though I have looked after him for several years. I don’t think he has his full mental capacity but he won’t visit a medical professional to be assessed. Is there anything I can do to protect my rights in his will?
A. First, let’s understand what capacity is required to write a will, as it’s much more basic than is commonly believed. In simple terms, your father only needs to understand what assets he owns, who he wishes to leave them to, and who he is leaving out from those who may have a claim on his estate. If he understands those matters when he signs his Will, then the Will is likely to be valid. Even people with dementia can execute a valid Will in a lucid moment if they meet this test at the time they sign the document. If he doesn’t, it is not valid. One option to head off a new Will might be to apply to have a guardian appointed over his personal and financial affairs on the basis that he lacks capacity. Search the internet for ‘Appointment of Financial Guardian’ and you’ll find that your local State authority can assist in this regard. You do not need a solicitor to do this. You’ll have to provide evidence of his conduct to prove incapacity and through the relevant tribunal you can obtain a medical opinion.
But what if he does sign a new Will? If he does, you have two possible remedies and both involve challenging the Will once he passes away. First, you could assert he didn’t have capacity to make the Will. But absent medical evidence means you’ll have had to maintain a diary to record his behaviour and level of cognitive understanding to help prove his mental capacity.
Given the test referred to above, it is very difficult to prove mental incapacity in the absence of medical evidence, but the more evidence you have of impaired cognitive function, the better your chances. Secondly, as the son, you have a statutory right to challenge the Will on the basis that, in all the circumstances, your father failed to make adequate provision for you.
The court will examine a comprehensive list of issues, including the care you provided, the competing interests of other beneficiaries and their respective financial circumstances, and if satisfied that you should have received an inheritance, they have the power to re-write the Will to make appropriate provision for you.
This type of application is very common and the courts are quite skilled at working out ‘what your father should have done’. You’ll often find competent lawyers who will conduct this type of case on the basis that they only charge if you are successful.
The information in this article should be considered general in nature and legal advice should be sought. This information has been provided by Rod Cunich, author of Understanding wills and estate planning. Rod can be contacted via his site www.keypointlaw.com.au, where you can learn much more, and also buy a copy of his book.
Rod Cunich is a lawyer with over 30 year of experience who specialises in estate planning. If you have a question for Rod, simply email it to [email protected]
