Volume 79 - May 2013
Aged Dad SpecialWarning: This eZine adopts a humorous approach to alert those who have yet to face certain legal issues. If your father is getting on and losing his mind, see a lawyer rather than reading on and being distressed. For everyone else (including my own children-in case they were wondering) it was Winston Churchill who said "Saving is a very fine thing. Especially when your parents have done it for you".
In this issue:
Your Dad and his money
Has your Dad lost his marble? If so, it is all over for him making a will in your favour, or changing an existing will to disinherit a few of your siblings as he does not have the mental capacity to do so. On the positive side once he has “lost capacity” you do not need to visit him so often, to avoid losing out.
A lawyer will often send aged clients off to a doctor to witness the will and also they will ask questions (and take detailed notes) to determine if their client knows:
And that he does appear sane.
The more complex the will or the change, the more “on the ball” the testator and lawyer must be.
A general suspicion of lack of capacity e.g. age and/or illness is not enough for a court, there must be clear evidence of significant doubt that the testator had capacity.
The onus of proof weighs on those supporting the will. The court will look at any suspicious behaviour (often helpfully supplied by an ex-wife). Or suspicious circumstances, such as any irrational provisions, beneficiaries excluded unexpectedly or undue influence (e.g. carer windfalls).
Trials are awash with evidence of bitter relatives and concerned neighbours together with medical evidence. Your lawyer with his notes will be a star witness.
Your lawyer may use his own sanity as a benchmark which can be a very low hurdle. The chances of your lawyer being sued in borderline cases by disinherited beneficiaries are quite high.
Therefore, do not expect any senior citizen discounts next time that you wheel your old decrepit dad in for a will. Your lawyer will check to ensure that their client is sane, whereas normally there is no such obligation.
Dull and Duller
I have always supported Facebook’s quest to create increasingly accurate algorithms so that users would only be subjected to highly targeted advertising. Until, that is, the advertisement for “singles” on the side of my Facebook page was replaced by an advertisement for a pair of sensible brown shoes.
(c) Paul Brennan 2013. All rights reserved.
You and your money
Most people accept that they cannot take it with them. But having made your money, the law will ensure that your Will is carried out provided that you lived like a monk, avoided relationships (sexual or otherwise), had no children (even in a moment of weakness) and refused to give any money away to anyone.
If you failed to do any of this, a claim could be made against your estate by a spouse, child, or dependant on the basis that you did not make adequate provision for the claimant’s proper maintenance, education, and advancement in life.
Your “children” now include adopted children and step children. “Spouse” includes your de facto and/or civil partner, in fact anyone (male or female) that you have “shacked up with” for 2 years or more.
The claim is only against your “estate” which does not include property held as joint tenants (e.g. often your home), insurance policies, superannuation and trusts.
Unless there are good reasons for the delay, a claim must be made within 9 months of your death.
The court will determine if you made adequate provision for a claimant taking into account all the circumstances including the applicant’s financial position, the size of your estate, the relationship that the claimant had with you (or the lack of it) and the other deserving people that you have left behind.
The court will not make an order in favour of claimants who have enough money of their own. This tends to be rare, especially in the case of children. Also, the court can bar undeserving claimants. Needy prodigal sons are in with a chance to get something, the stronger their need the more reprehensible their conduct must be before a court will disentitle them altogether.
Costs are usually awarded out of the estate but claimants who have persisted in an unreasonable claim especially where the estate is quite small can be ordered to pay costs.
The good news is that they must all wait until you are dead and that there is no need to rush.
(c) Paul Brennan 2012. All rights reserved. Click here for legal books, eBooks, DVDs, and audio books.
Event - David Gillespie, speaking at the Business Referrals Club, Headland Park Golf Club, Buderim on 16 May 2013 7am-9am.
He is the lawyer who wrote "Big Fat Lies" the truth about diet, exercise, vitamins and why everybody seems so fat. A full breakfast will be served before he starts. Click here for further details and to book.
Disclaimer: The content of the Law & Disorder eZine is to give you legal basics and in some instances, included unashamedly to try and make you laugh. In law, it is sometimes difficult to work out what is serious and what is just for fun. Therefore, if you plan to do anything legal, rely on your own lawyer’s advice or instruct me to look at the particular facts of your case. Not only will I deny responsibility for the legal content but also for some of the jokes.