QLD Older brother wishes to change my father's will

Discussion in 'Wills and Estate Planning Law Forum' started by Mgunh1, 10 January 2019.

  1. Mgunh1

    Mgunh1 Member

    10 January 2019
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    My father (80) had a will with the public trust that stated that the estate would go to my mother (79) in the event of his death, but in the event of her death it would be shared amongst his three children.

    My father inherited a 27 acre property in NSW that includes a fairly run down house and a two bedroom cottage.

    My older brother moved into the house (which he has not improved since he has lived there) and has been renting out the two bedroom cottage for cash in hand. Approximately five years ago my father separated from my mother and moved in with my older brother. He became my father's carer at this time. My parents remained good friends and continued to see each other (as well as myself) on a regular basis, usually once a month, when my brother had business in Brisbane.

    Note: I live in Brisbane, QLD still, as does my mother.

    When I separated with my husband ten years ago, I moved into a run-down tin demountable on my parent's Brisbane property, along with my two children.

    My mother has been experiencing mental health changes indicative of alzheimer's, but has yet to be formally diagnosed. She has done things such as leave her purse behind when leaving, despite being asked several times if she had it on her. She has also left freezer doors open as a way of defrosting them, while they remained on. She can get very confused and will believe what people tell her without thinking things through (this has led to her being the victim of a con more than a few times).

    My father fell extremely ill and was taken to hospital just before Christmas. It was at this point that my older brother came up to Brisbane and took my mother down to NSW to visit my father. My father's mental health has been deteriorating over the past 12 months and on the brain scans taken during Christmas appeared to have multiple small infarctions (damage from strokes) to the point where he could only drink thickened water for fear of choking. He is on morphine and suffers from delirium. It was deemed that my brother could no longer look after my father and that he would likely not have long to live, thus he would need to be moved to a high level care nursing home.

    When my mother returned home, she visited me and told me that she wished to make my older brother the executor to my father's will. She also told me that my older brother wanted the will changed so that he would inherit everything that belonged to my father or otherwise she would lose the pension. He also told her that once my father's nursing home fee ($750 per day, according to my brother) was paid for, there would be very little left of the estate. We have done our own research and the information about the nursing home fee is not true.

    He also told her that he would sell up the remainder, which would pay for a house (in his name) for him, my mother and my younger brother to live in. The rest would be put into an account (again in his name) that my mother could access.

    Supposedly, for a period of time, I would be allowed to live on the property in Brisbane. He also told her that I had already agreed to this and that in his will he would leave everything to my children (as he has no children of his own and no spouse). No such discussion ever took place, nor would I ever agree to this.

    I said as much to my mother. Over the phone my brother told her that he would send an email to me explaining the situation. No such email has ever arrived.

    I do not believe that my father would have the capacity to make a new will without my older brother doing all the talking. I do not believe he would have have the mental capacity to understand what was happening at all.

    I do however believe that my father could be led to believe that my mother would be left destitute without the changes to the will my older brother has proposed.

    As a side note, my mother was told by a hospital social worker that, with the original will, she could just remove herself from the will and the estate would simply be shared amongst his three children.

    The Brisbane property (which I live on and is in both my parent's names) was last valued at $1.4million (but is set to increase as it is listed for development). I have no idea what 27 acres (including a serviceable cottage and a run-down main house) in Byron Bay might be worth. A very conservative guess would put it in or around $2million (likely more).

    You can understand that there is some considerable value being argued over here.

    There have also been changes to his last wishes regarding his burial. He has a family plot in Byron Bay and has always talked about being buried there with his other family members. I have now been told that he wishes to be cremated in Brisbane and his ashes scattered, something he was quite adamantly against when he has spoken to me about it in the past.

    I have never had anything close to a good relationship with my older brother. All contact with him has ceased.
    My mother is currently not talking to me as I oppose the changes to the will, which leaves everything to my older brother.

    I do not know if another will has been made. I do not know if I'll even be told if he dies.

    My questions on this matter are thus:

    How do I get notified if my father has died?
    How do I get a copy of the current will?
    Who do I go to, should I need to oppose the will?
  2. Rob Legat - SBPL

    LawTap Verified

    16 February 2017
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    1. There's no legal requirement to inform you of your father's passing. It's just 'assumed' that family members will do so.
    2. You don't have any right to access the current will. Once your father passes away, you will have a right as a potential beneficiary to be provided with a copy of the will from the executors (upon request).
    3. You'll need to find a solicitor who practises in estate litigation and dispute resolution. I recommend starting here: www.lawtap.com - search by wills and estates, and look for results which also state litigation and dispute resolution.

    I'd also suggest you may not want to wait around on this. There may be prudent steps to take that can nip future problems in the bud. Specifically, for example, you don't want a situation where your father passes away, the estate goes to your mother and your brother unduly influences her to give him power of attorney (and therefore access).

    From what you've said, it indicates that potentially neither your mother nor your father have 'capacity' to create a new will or to appoint an attorney. It would be worth your while establishing whether that is the case now so that any attempt by your brother to, for example, have a new will created would be moot. It's easier to prove a lack of testamentary capacity now than it is to try to do it later when the person is no longer available.

    You might also want to consider talking to the relevant offices of the Public Guardian (Qld : www.publicguardian.qld.gov.au and NSW: www..publicguardian.justice.nsw.gov.au ) to alert them to the situation and investigate the installation of a proper guardian for the interests of your mother and father. This process could stall any attempts by your brother to unduly influence an outcome.
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    Mgunh1 likes this.
  3. Mgunh1

    Mgunh1 Member

    10 January 2019
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    Thank you, we will look into that.

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