Northern Beaches Lawyers were recently asked to advise in relation to being left out of a will, where a half-brother had left his entire estate to strangers believed to be neighbours of the elderly gentleman. His wife had predeceased him some years earlier, and there was a suggestion that he suffered some dementia before moving into a nursing home in the last seven years of his life. He had withdrawn contact with his half brother and sister shortly after his wife died, and in circumstances where he began drinking heavily.
Our clients lost contact with the deceased when he was removed to a nursing home and they were unable to locate his whereabouts until after his death. They did hire a private investigator and made enquiries of the occupants of his home, who informed them that they were tenants. Despite our clients’ attempts to contact the deceased, there was a period of approximately 12 years of estrangement, in which time neighbours had befriended the deceased, taking him to their solicitor where a Power of Attorney and Will in their favour was made, and upon the deceased’s death, all his estate, including bank accounts, passed to them. The deceased did not have any children and had inherited his wife’s wealth, and the estate was substantial.
In order for our clients to be successful in a claim under the family provision law it was necessary for them to establish that they were a member of the deceased’s household and were financially dependent on him at some stage during their lifetime. There was a big age difference between the half siblings, and one of our clients could establish the requisite condition of being a member of the household, though the other sibling could not.
Both siblings were aware that they were named as beneficiaries under an earlier Will, and one of them was also named as the executor. This earlier Will has not been located to date.
This case illustrates the crossover point of the law of Probate where this case could have been a contest between two Wills, the most recent Will leaving the entire estate to strangers, and an earlier Will leaving the estate to the family. In that contest the issue of testamentary capacity would be central in determining which Will should be admitted to Probate as the last true and legal Will of the deceased. In these circumstances the deceased’s medical records about the onset of his dementia and the circumstances regarding his Will instructions and where and how the Will was made, would be critical. If those circumstances and facts led a Court to decide that the last Will was not the deceased’s true last Will and testament then the earlier Will would prevail, and both our clients would take the whole of the estate equally.
If the earlier Will cannot be located or proved, then only one of the siblings will have a legal claim upon the deceased’s estate for further provision and the neighbours will retain a large share of the deceased’s real estate.
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