Because our previous articles about People Behaving Badly have been so popular, we are continuing the series:
For those people who believe that Testamentary Freedom should be sacrosanct, and that the contents of a Will should NEVER be able to be challenged, read on…
Elder financial abuse by an attorney
Mr B granted power of attorney to his daughter M.
B had significant medical issues and was highly vulnerable.
When B lost his capacity, and needed to move into a nursing home, M sold her father’s home under power of attorney.
However she did not use the money to pay the upfront capital cost of a Refundable Accommodation Bond.
Instead she elected to only pay a Daily Accommodation Payment, while transferring the proceeds of sale of the family home into a separate bank account which she opened in joint names with her father.
The power of attorney did not authorise her to confer benefits upon herself. M was also sole executor of B’s Will.
After the father died, M claimed that the bank account belonged to her alone by right of survivorship, and did not form part of the estate.
Proceedings were brought by her siblings to recover the misappropriated funds from her as attorney, as otherwise the siblings would have lost their inheritance.
M was ordered to repay all of the money, as well as pay the legal and court costs of all parties.
In this case, an asset which had been improperly removed from the estate, was ordered to be returned to it.
This case demonstrates that actions performed under power of attorney are not without consequence in a deceased estate.
At his father’s request, a son abandoned plans for university to work on the family farm.
He did so without a wage for many years, motivated by statements from his father that the farm would be the son’s financial future.
The father said that the son would inherit the farm. However, a decade later there was a falling out.
The father made a new Will without provision for the son. The son brought proceedings to enforce his father promises.
The court concluded that the son was entitled to rely upon the father’s promises (which he had done to his detriment), and so the Court adjusted the Will to reward the son.
This case demonstrates that there is no such thing as unfettered testamentary discretion, and that the court will always reserve to itself a discretion to interfere with a Will or an estate to achieve justice.
Lawyers (and their fees) get a bad reputation, but very frequently it gets back to the bad behaviour (often involving greed) of one or more of the litigants.
How confident are you that EVERYONE (including partners and kids’ partners) will behave honourably, fairly and reasonably in your family? Until temptation and opportunity present themselves, you never know anyone until you’ve shared an inheritance with them.
Genders and Partners is the oldest law firm in South Australia, established 1848.
Contact us to learn how to protect yourself, your family and your assets by assisting you to administer a deceased estate, by visiting our website today and schedule a free no obligation telephone consultation to find out how we can help protect you and yours.
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