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Will changes, possible elder abuse and capacity issues | Our Client’s Story

Catherine Henry Lawyers
Catherine Henry Lawyers

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Will changes elder abuse capacity

When our client’s elderly sister made will changes, removing her family and leaving her estate to a young couple she had just met, concerns of possible elder abuse were raised and her capacity to make those changes were called into question.

Fortunately, we were able to negotiate on our client’s behalf and bring about an agreeable settlement which saw our client, and his family, claim their rightful share of his sister’s estate.

Drastic will changes

In 1999, an elderly woman (hereafter called Mrs X) and her husband executed wills which left each other their estate if either was to predecease, following which the estate was to be divided equally amongst their siblings.

Nine years later, when her husband passed away, Mrs X was left with substantial assets, including their residential premises. Mrs X was somewhat self-sufficient, and her home was her prized possession.

In 2012, Mrs X was befriended by a young couple who subsequently moved into her home. Contact with her remaining family who resided interstate became less frequent. When her family were in contact via telephone calls or visits, they noted that Mrs X’s behaviour was a little unusual and her appearance was dishevelled.

Two years after the young couple moved in with Mrs X, she changed her will, Power of Attorney (POA) and Enduring Guardian appointing and favouring them; effectively writing her own family out of the will.

Concerns of financial elder abuse

Mrs X had avoided doctors for many years. A neighbour noticed that Mrs X had been left at home for substantial periods of time and did not know how to prepare meals. Following welfare concerns, the neighbour reported the situation to the Aged Care Assessment Team (ACAT) and Mrs X underwent a capacity assessment by a geriatrician where she was diagnosed with cognitive impairment and a disorder of the mind.

Our client made an application to the NSW Civil and Administrative Tribunal (NCAT) reviewing the appointments under the new POA and Enduring Guardian. It was determined that while the Tribunal could not comment on the capacity of Mrs X at the time of executing the POA and Enduring Guardian, the appointments were to remain.

Mrs X’s condition deteriorated significantly over the years resulting in the need for 24-hour care. She was placed in a nursing home and her residence was sold for a significant amount of money. The elderly woman remained in the nursing home until her death in late 2018. She left behind a significant estate.

Questions about capacity

Our client, concerned about his sister’s capacity at the time of executing the will and potential elder abuse, placed a caveat on probate on the basis he wished to contest the validity of the later will as he had a material interest being a beneficiary under the prior will. Proceedings were commenced by the young couple, who were the executors of the estate, seeking that the caveat be removed, and probate be granted in respect to the later will.

Despite family members having limited exposure to Mrs X’s deterioration over the years, there was no contemporaneous medical evidence to support the finding of capacity issues around the time of executing the later will.

The law identifies that in order to determine whether a person has testamentary capacity, at the time of making a will, the solicitor needs to satisfy the following:

  • Does the will maker understand the nature and effect of making a will?
  • Does the will maker know the nature and extent of assets held?
  • Does the will maker comprehend and appreciate the claims to which he/she ought to give effect?
  • Is the will maker affected by a mental disorder influencing the disposal of his/her assets?

In order to determine whether Mrs X had testamentary capacity, a request was made to review the file of the solicitor who drafted the later estate planning documents.

Unfortunately, there were limited notes kept on file and upon further request for disclosure the solicitor advised that the file had been destroyed as a result of a natural disaster some years ago. Accordingly, there was no certainty as to whether such steps were taken to satisfy the test for capacity of Mrs X at the time of writing her new will.

Negotiating a successful outcome

With any litigation matter, there is a risk of being unsuccessful and in order to reduce the legal costs, and potentially devaluing Mrs X’s estate should the matter proceed to a hearing, the executor and our client came to a settlement in which both the young couple and family were to share the estate.

Thankfully, awareness of financial elder abuse is growing and increasingly there are steps being put in place to protect the vulnerable in our community.

If you find yourself in this situation or are aware of a loved one that is potentially exposed to these issues, contact Catherine Henry Lawyer’s expert Estates & Elder Law team. Call 1800 874 949 or fill in the form below, and we will be in touch.

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