As a result we can expect to live longer but we must also expect to require increasing amounts of assistance in our later years.
In short we are likely to rely upon an increasing amount of care towards the end of our lives, and this care will be provided by people who will be in a position to influence us regarding testamentary gifts.
The role of carer can be quite an intimate one. Confidences can be shared; friendships are established. It becomes a “trust” relationship. However the potential inequality in the relationship (the reliance that is necessarily placed upon the stronger person by the weaker person in the relationship) creates a ready climate for exploitation.
As a society, we judge the respective “bargaining” positions of many common relationships, such as employer/employee or teacher/student. Where one party is thought to be too weak to properly protect their own interests, the Government & the Courts will intervene to offer protection against unfair or unreasonable behaviour.
It is understandable that we may want to show our gratitude to our carers by providing for them in our Will. However such bequests can be open to challenge by family members and other beneficiaries after our death.
Questions of capacity and influence may arise.
Sadly, “Elder Abuse” is an increasing concern in modern society. “Gold-digging” is seen as a product of bullying, fraud, menace, duress, or undue influence. Advantage is sometimes taken of an elderly person’s reducing health, mobility, independence or mental status.
All sorts of rationalisations and justifications are offered by those unscrupulous enough to place their own interests ahead of the elderly person: “It’s what they would have wanted” is a common contention. Feelings of expectation & entitlement, or a response to financial desperation, are also commonly seen explanations.
We have all heard of examples where a vulnerable & elderly person changes their Will very shortly before their death, leaving a substantial gift to a “new friend” or carer.
Such gifts are likely to be viewed with considerable suspicion by Australian Courts.
Anyone (especially elderly people) wanting to leave assets to a carer should take considerable care to minimise the risk that the gift will be invalidated. There are steps that can be taken by an experienced lawyer specialising in estate planning to greatly assist your testamentary intentions to be made effective.
Rod Genders is a senior Australian lawyer specialising in accident compensation and estate planning in Adelaide. His boutique specialist law firm is one of the oldest and most respected in Australia – visit it at www.genders.com.au . Rod is also a prolific author and speaker. Some of his articles and books on Wills, Probate, Trusts, Estate Planning, Asset Protection and Retirement Planning may be found at www.genders.com.au/adelaide-lawyer-blog.