Disputing an Estate When You have not been in contact for a while.
“I didn’t even know she had died!”
Paul and Irene were in their fifties when they started living together, some 20 years ago. They made wills leaving everything to each other in 1995, but a few years later Irene developed dementia and had to go into a nursing home as caring for her at home was beyond Paul. They lived a few hours out of Sydney, and could not get a place near their home.
Irene’s daughter Joan, had not had much to do with her mother for many years – she and Paul did not get on. However, Joan found a nursing home in Sydney, near her own home, and Irene was admitted. Because of the distance, Paul and Joan agreed to nominate Joan as Irene’s guardian and next of kin for the nursing home, but this was not a formal Appointment, as Irene did not have the mental capacity to make one.
The home knew of Paul and Irene’s relationship, and he had given it his contact details.
As time went on Paul visited Irene less and less. He found it very depressing, and as he aged the trip became harder and harder. He had not visited Irene for almost 7 years
Two months ago Irene died. No one told Paul, and he heard of it from a friend who had seen the funeral notice in a Sydney newspaper. He rang the home to have a piece of them, and they denied knowing of his existence. Her daughter had arranged the funeral, and the home had reimbursed her from Irene’s account with them. Apart from his upset at not being notified of Irene’s death either by the home or by Joan, Paul as her beneficiary was entitled to Irene’s money. He had a pre-paid funeral plan for Irene, that was not refundable, and the cost of the actual funeral had been unnecessary. Although he owned his home, he had little else, and was on a Centre link age pension.
What is the legal position?
The simple part is, that Paul is entitled to Irene’s estate under her will. The fact that she has subsequently lost her mental capacity – and the ability to make another will – does not invalidate her will. Because their physical separation was not because of any breakdown of their de facto relationship, the law still sees them as partners.
Who has the right to arrange a funeral? An executor of a will is there for administrative purposes, to carry out the terms of the will, and does not necessarily have the right to arrange the funeral – that normally rests with the next of kin, who is Paul.
However, the problem has arisen because neither the nursing home – probably because their records had been lost with time – and Joan, because of her attitude to Paul, told Paul of Irene’s death. Consequently the funeral cost has effectively been duplicated, and in fact represents the majority of Irene’s estate. Paul as Irene’s legal partner, would have a claim against both the nursing home and Joan for those moneys, but unfortunately like many smaller claims may well not be economic to pursue!
Joan says that not only did Paul not visit Irene for years, but he did not even ring to see how she was. If that was the case, perhaps Paul’s financial loss is a self-inflicted wound!
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