WA Sibling Helped Parents Make a Will - Is This Legal?

[monaroman]

Hi,

Recently, one of my siblings helped my parents make a will with an online will kit. The sibling made herself the main beneficiary of the will along with making herself trustee with the discretion to distribute funds as she sees fit. At the same time, she had my parents sign a power of attorney giving herself the power to sign documents on my parents' behalf.

My question is, is this legal as she has been so closely involved in drawing up the will and has not engaged the services of a third party such as a lawyer?

My parents are quite elderly and my mother is suffering from Alzheimer's disease.

Thank you for your answers in advance.

 

[Lance]

In a lot of cases the executor of the will is also a beneficiary. I don't believe it is illegal. However under the Family provisions Act you would have the ability to contest the decisions of your sibling if it is unfair or disproportionate as this act enables you to apply for greater provision out of their estate.

 

[monaroman]

Hi Lance,

Thank you for the reply.

 

[AdValorem]

Hi Monaroman

Several issues must be resolved:

1) Did your parents have testamentary capacity when they signed their wills and power of attorney?

2) If your parents had capacity, did they know the contents of the wills and the power of attorney and did they approve them before signing?

3) Did your parents sign the wills and the power of attorney under undue influence?

Some factors that are relevant when determining if the will maker knew and approved the contents of the will are:

• the absence of legal advice
• subsequent statements of the will maker inconsistent with the will
• the testator suffering from vision or hearing problems
• if the will differed from previous wills
• a pattern of manipulative behaviour by the primary beneficiary
• was the person who helped prepare the will to take a substantial benefit under it
• the complexity of the will.

The costs of challenging a will after the will maker has died may be significant. If the wills are invalid then the rules of intestacy will apply.

This is a complex matter and you should seek legal advice.

 

[monaroman]

Thank you, AdVaiorem, for your reply. I have spoken to my parents in the mean while since I put up my post they are seeking legal advice and are going to change their will.

My parents say that they were badgered into doing the will in the first place and didn't really understand what they were signing. They are also going to redo the power of at attorney so that two signatures are needed on every document.

 

[winston wolf]

I would suggest they get a statement from a medical practitioner that they are competent at the time if sighing the will if they are frail or have an illness.

 

[monaroman]

Thanks Winston, for the tip. Great idea.