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NSW Solicitor Changing Will when Dying Patient Incapable

Discussion in 'Wills and Estate Planning Law Forum' started by John James, 19 August 2014.

  1. John James

    John James Active Member

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    Mother is incapable of saying too much and totally imcapable of writing while in her last days of life in a home. She has not been classed as incapable yet is certainly now incapable of making any decisions let alone major decisions on anything. On waiting for enduring power of attorney papers to be sent to me after 3 weeks waiting, and not being able to pay bills for my mother, I have been fobbed off by the solicitor in why.

    Today demanding an answer I was told a solicitor would be attending the home to change the will and POA that she signed (while fully alert) a few weeks ago. I was given no more information other than this..

    My question is can the will and POA be changed, when clearly my mother has no idea of anything now and can barely move or utter a word? I have been doing everything for her and only one visiting her daily, while the other 2 siblings (one of which is joint POA) have avoided her until she has lost ability, and now I believe have convinced the solicitor, (that I called with my mother while able, to make the will and poa as her old ones we were told were void being from another jurisdiction.(state), to delete me from the will.

    What can I do to ? as my mother has told me over the last 2 months how disgusted in my siblings for thew way they have treated her and ignored her the will that was signed weeks ago had all 3 siblings as both executors and beneficiaries.. the 2 siblings that have not been there until now have always been against me and have stated that when mum dies they will have majority rule over her will. (even putting that in a written statement)
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi John,

    Is there currently a Power of Attorney assigned? If so, who holds power of attorney for your mother? What is the nature of this power (ie. financial, general, enduring)? If more than one person is acting as the power of attorney, do they hold the power jointly or jointly and severally?
     
    John James likes this.
  3. Sophea

    Sophea Well-Known Member

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    Hi John James,

    Whether or not a Will and POA signed by your mother in her current state will be upheld or recognised by the court as valid, will depend on the evidence that you are able to provide of her mental capacity at that time. Generally, courts require expert medical evidence from her doctors and nurses, and a formal assessment of her testamentary capacity. If the lawyers for your siblings is smart, he or she would have arranged for a doctor or specialist to assess her for this prior to her signing the new Will. Conversely, if you can get any evidence from doctors or have her examined and assessed to prove that she doesn't have capacity to understand the implications of the decisions then this will enable you to contest the later Will. If you can knock that one out, the old Will will likely be the one that the court grants probate to.

    In circumstances where (worst case scenario) your mother signs a new Will which writes you out of any inheritance and the court finds that it is a valid will, made with full mental capacity. You are entitled to bring a family provision application, which is essentially a claim to entitlement under the will to an inheritance. The court will determine an appropriate division of the estate taking you into account.

    Just don't stick your head in the sand, do all that you can now to get the evidence you need, be there when she is signing the new Will and if you suspect something, confront your siblings about it. I know its not the easiest thing to do at such a time, but it saves a lot of stress and expense afterward. You don't want to squander the estate on legal fees to fight the will or become involved in long and drawn out proceedings with your family. You would be surprised how often this happens.
     
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  4. John James

    John James Active Member

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    Hi Sarah, Thanks for the response.

    Part of the issue thus far is, that the solicitors when I called them will not give me any information. I signed the POA weeks ago, my sister was to also sign it but refused at first, saying she already was POA (she had joint several poa with my mothers late husband in QLD) this solicitor my mother has now said that didn't count in NSW nor does her will which was done by a solicitor years ago in QLD.

    To answer your question sorry... the poa I signed weeks ago was joint but not several.. we have to have both agreeing, as mum doesn't really trust my sister. and didn't really want her as poa at all anymore but didn't want her wrath taking her off and putting myself in her place.

    I was ringing for over a week asking when they were sending copies to my mother in the home and myself which they promised. Today the office tells me another solicitor is going out to redo what was done weeks ago,, I said I needed the papers each time I rang to be able to pay certain bills and cut off certain utilities, as they won't do it without proof of poa, and mum is unable to do it or talk on the phone now.

    They said, it is what it is..and they cannot say more... the solicitor is going and seeing her alone. I told her mum is isn't responsive anymore and can barely breathe let alone talk and certainly cant sign anything. my sister previously had called them suggesting I not be poa as she has done it before and telling them I had not and no idea what I was doing.. even though we have been taking care of all my mothers move from qld and bills etc.. and still are as of this moment..

    So I'm not sure if I am poa or not.. I signed, my mother signed, I was told my sister eventually signed, and they tell me they can't send the papers as things are going to change tomorrow(today now). My siblings paid a rare visit to mum on sunday together, and I have got a msg from sister tonight saying she has been talking to the solicitor about things and they will contact mum regarding any legal matters.

    my sister at one stage threatened my mother over the phone saying she would take herself of the POA just so I couldn't be part of it.. I asked him would that make the poa void or would I be the only one on it. he answered that she couldn't take herself off it she signed it as a legal document??

    Also on the will my mother has all three children as the executors. in which 2 will be against the one, and they have indicated that they would seek to have majority rule in the past when the time comes, How does that work?

    Thanks again for your response
     
  5. John James

    John James Active Member

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    Thanks also Sophea for your answer,
    I have spoken to the new manager of the home my mother is in, the reason was to ask him to be aware of my siblings when they call or do happen to visit which I expected they would the closer it gets to her time, to pop In and perhaps informed the staff to watch for them upsetting her .. he said he could do nothing really unless I took out an enduring 'guardianship', otherwise they will do as she says.. Which is great if she was as she was a week ago and able to hold a conversation, but she has deteriorated suddenly and each day far worse than the last, all within the last week. She was assessed weeks back and passed 100%, she would not get one question correct now at all, yet has not been tested again, the nurses know but that's another thing also out of my control unfortunately.

    Mum signed the new will many weeks ago when she was still alert and able to comprehend and write. She could not sign anything tomorrow, she is just not able, but the solicitor is going knowing that full well which makes me wonder if there is another way they can have it done.. 'signed affidavits' with the new home manager who thinks shes ok still, perhaps, I just find it all sudden and knowing the levels my sister would go and how convincing she is, to the point where she has the solicitor I picked for mum, believing her.. I just feel mums wishes will be disregarded and she can't now do anything about it either.

    I have confronted my sister, even asked her if she was intending signing the poa,, she said she wouldn't tell me ..she woujld discuss it with mum not me.. and had already signed it. .. how can one be joint poa with a person who wont even answer if they have signed it yet?
    There is also a matter of 'belongings' from mums house in qld..that i was asked to go and pack and move to storage in nsw over a month ago, which mum has already divided. They have not made attempts to get their share that is in storage until now and are threatening charges on myself because i cannot arrange this immediately.

    I asked the solicitor about those possessions that were split up and moved back then.. and he said they have nothing to do with the 'assets'' / 'estate''. Is this true? can they come back later and try and take those things already given?
     
  6. Sophea

    Sophea Well-Known Member

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    What your mum's solicitor said about needing a new POA to be signed since she is in NSW is not really true. While each state has their own regime and forms for POAs, most will recognise POAs from other states. the Powers of Attorney Act 2003 (NSW) provides that in NSW, an interstate Enduring Power of Attorney will be recognised as if it was made in compliance with the NSW regime. With regards to a Will, as long as it complies with the requirements of the NSW Succession Act (which are largely the same as the Qld act) then it will be recognised by a court in NSW. The solicitor probably just wants to make sure everything is water tight and compliant which is understandable, and also to generate work for himself.

    If possible I would try to arrange for another assessment of your mother's mental capacity, as soon as possible after the solicitor visits her to have her sign the will. If she does sign the will, you can use it as evidence that she did not have capacity.

    With regard to the belongings: If it was your mother's intention that her household items be distributed before she dies, they will not form part of the estate. Anything she has not already gifted will form part of the estate after she passes.

    This sounds like a very difficult situation for you. I hope this information helps.
     
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  7. Sarah J

    Sarah J Well-Known Member

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    Hi John,

    I agree with what Sophea said above:

    - Arrange a medical assessment of your mother to use as evidence of your mother's mental incapacity. With this, you can contest any subsequent versions of your mother's will.
    - A POA made interstate is valid in NSW under the Powers of Attorney Act 2003 (NSW) ("the Act"): see Section 25

    Which previous POA is your sister referring to? Do you have a copy of this POA?

    The current enduring POA (POA that will endure after your mother is incapacitated) will be valid if it satisfies Section 19 requirements (signature of attorneys, witness, statements by your mother etc) of the Act.

    Given that the POA you signed is jointly but not severally, even if your sister has consented by signing the POA, she can vacate her position by renouncing the power: Section 5. The effect of vacation is that, unless the POA instrument itself provides for substitute attorneys, the POA will be terminated: Section 46(1). This means, your sister can very well "hold the POA hostage" by either refusing her consent in decisions relating to your mother or by renouncing and thereby terminating the POA.

    If your sister subsequently makes another POA, or if you would like to contest the previous POA, you can apply to the Civil and Administrative Tribunal or the Supreme Court for a review of the POA: Part 5 of the Act. Note that an attorney can only make decisions about finances and property. Decisions about lifestyle and medical treatments require an enduring guardian. If you are concerned about the actions of an attorney or a guardian, that they are not acting in the best interests of your mother, you can apply to the Tribunal for a review of the decision and even ask the Tribunal to replace/change the attorney or guardian and appoint a new one.

    I hope this helps John. Best of luck.
     
  8. John James

    John James Active Member

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    Thank you both for you detailed responses, This has been so stressful since my mother came down to NSW, she got her second wind of health knowing she would be near us, since then sister who told all and sundry she was the poa went overseas for a month and never contacted mum for a week after she returned to see how she was, and brother had not talked to her for longer out of spite. My wife and I have had to spend all our time with mum fixing the problems left by my sister from telling everyone to wait until she returned from overseas. which of course was impossible things had to be done bills had to be paid, houses had to be sorted etc etc. So what should have been times to reminisce and have no stress in a dying persons life has turned out stressful for her and added to her fast downfall in my opinion at least.
    That said regarding the solicitor he has given much incorrect advice it seems.. I did however ring the trustees both in Brisbane and Sydney when we first asked mum if my sister was infact the poa and Sydney did say on both times i checked by phone, that QLD wills and poas did not count in NSW, this on top of what the solictor said, i had no reason at that time to doubt him. Mum made me write out a letter to send to my sister as we were advised that should be done to revoke the poa and a site i read also said that was needed..so we sent that to her and after that she finally did sign the poa. To be frank I would be suprised if my mother makes it to her birthday which is this friday as the daily downfall in her health is considerable, I find it hard to believe they have not assessed her over a week ago, as she cannot do a thing for herself anymore and isn't sure who is visiting her or talking to her.
    I will try and get a local doctor to go and assess her as recommended. The only reason my sister wanted poa and alone without myself is for the percentage she can take for doing it. I said to the solicitor i want it clear that we are not to gain from doing the poa and that most all things needed ie bill paying etc we have done fine while the siblings have been ignoring mum..so there isn't really much to do in regards to it as i see.. the concern was mainly for us to be able to pay the few bills that demand poa, and the concern that if my siblings are ganging up on this issue how much more will they once mum is classed incapable join forces to obtain what mum has said and given while they were absent.
    There is so much more to this complicated case that all tie in, such as unpaid loans to my mother by my brother and my sister believing she has rights to all the jewellry that mum actually had neighbours take from her house so my sister couldn't go and take..
    I will try and get doctors to assess her as soon as i can, and as for the will, I suggested to my mother when she was not as bad as now, that she might want to take the 3 of us off being executors and give that job to the trustee to make it fair..she by this time said she was over the whole ordeal and righty so so i didnt push it as she didnt need any more added stress, so unfortunately it leaves the situation where there will no doubt be problems from us all disagreeing and now nothing much from my mother to say either way what she wanted.
     
  9. John James

    John James Active Member

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    Also I only got a copy of the will made about 3 weeks ago but it was incorrect and had my surname incorrect. I gave all the details of names and addresses to the solicitor so they could save time and a trip to the home by having the documents ready for mum to sign.. however they put mums surname down for my surname and had my siblings all under my address.. They said they would do another correct will in which I have not seen nor has it been sent to my mother at the home, I also have never seen a copy of the poa after trying for weeks. If my name is incorrect as it is on the only will we have seen, does that hold up?


    I have just now rang a few doctors in that area and they have said they cannot visit mum to assess her as the home has a doctor that would be checking that and they could not get involved while another doctor was and couldnt without her already being a patient anyway. So I rang the home and spoke to the senior manager and made my concerns known again, and he asked how often i see her and how she seems.. after i told him she believes she owns a rabbit and doesnt know how to care for it, he said he would get the nurses to look into getting her assessed but however he stated it takes time its a process, i indicated that today papers may be changed by a solicitor coming in to visit and need to make it known i am trying to get this assessed asap incase of future proof needed for any contesting of the will or the like.. he said he would make note of the converstaion lets hope.

    Last time they 'assessed her ability' it was a quick questionaire on things like past prime minsiters etc and took moments. One just has to step into her room now to see her condition and see that she wouldnt be able to answer the simplest question. I don't understand why this wasnt done a week ago when I first asked about it.
    Thanks again both of you for your replies i will keep you posted.
     
  10. John James

    John James Active Member

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    Sarah,

    you posted section 46 earlier and the last part read
    ''(2) If a power of attorney appoints 2 or more persons as attorneys either severally or jointly and severally, a vacancy in the office of one or more attorneys does not operate to terminate the power of attorney in relation to the other attorneys."
    I'm not sure I understand it correctly but does that mean that if my sister does remove herself from the POA that I am still on it?

    I guess without seeing or being able to obtain off the solicitor as requested the actual copy of the POA that I signed I cannot really know exactly what it does say now,

    I am at a loss as how to get a copy of this as they refuse to send it now since my sister has convinced them I shouldn't be doing it because I havn't done one previously. I thought as I paid the solicitor to go do the POA and Will, that I would be entitled to copies??
     

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