NSW Solicitor Changing Will when Dying Patient Incapable

[Sarah J]

Hi John,

Section 46(1) applies to POAs where attorneys are jointly but not severally in power. In this case, if one attorney vacates their position (ie. renounces their consent), the whole POA terminates.

Section 46(2) applies to POAs where attorneys are severally or jointly and severally in power. In this case, your understanding is correct, if one person vacates, the POA remains in force and the other person remains an attorney under the POA. This is because holding joint power severally means that each attorney can act independently of the other, does not need agreement of the other — it is as if each attorney holds a separate and independent POA, which just happens to say the same thing.

In relation to your situation:

- You need to figure out if you and your sister hold the POA jointly or jointly and severally.
- While your mother is currently able, you can think about asking your mother to assign a sub-attorney in the event the POA is jointly held and your sister decides to vacate her position.
- In either event, you are able to challenge 1) the validity of a POA or 2) the assignment of your sister as attorney for your mother or 3) the actions of your sister in exercising her powers under the POA before the NSW Civil and Administrative Tribunal.

In relation to what your lawyer is doing, this depends on the instructions given to your lawyer, who hired/assigned the lawyer, who the client is and many other factors. I would suggest seeking separate legal advice, perhaps try contacting your local community legal centre: http://www.clcnsw.org.au

 

[John James]

Sarah thank you again so much for your replies, I appreciate all the help I can get and sorry I have to keep asking things.
The POA is joint.. not serveral. we have to tell each other..however up until this point since she 'apparantly signed' (no proof of that as yet as the solicitor won't send the copies), my wife and i have been still paying the bills or at least trying to (difficult without the poa), and my sister has not tried or asked anything about mums finances or bills, or anything to do with her so far.

I was the person who rang these solicitors at a time mum could speak,and i paid their fees, but as they are acting for my mother I presume they are working for her not myself?? They certainly arn't doing as I request in sending copies of the will and poa as they said they would.. yet they now seem to be taking instuction or at least conversing with my sister regulary from what she texted me.

As for mum..she has been unable to talk coherently for a week or so now and asking her for anything or about these issues would not happen. This is why we have asked the home to assess her capabiliies and await them to do that. My brother and sister saw her on Sunday and my sister informs me of some 'conversations' they had with mum on that day, but i don't believe they took place as I have been visiting constantly since we admitted her and there is no way she was talking coherently days before that..and my daughter had visited her just 5 minutes before they arrived and said she was that sick and couldnt talk at all that day, as i would have expected from our prior visits that week.

I believe my sister has asked the solicitor to go out and see mum yesterday to change something, yet I don't know how that could be done in here state of mind / body, without something suspicious as she really has no way of communicating anything legal or important if at all and certainly no way she could hold a pen, she cant hold a spoon.

I am worried about how anything could have been changed and worried why they have not assessed her , however as i said before the call i made to the head of the home has said he would see about it and yet it takes time...and he said he would record that i have asked about this..

I'm off to see my mother right now so will see what happens today...
thanks again and sorry for the novels..its hard to explain without some background.. appreciate all your help

 

[John James]

Yesterday on arriving at the hospital there was a message on message bank to call the solicitor, missing this call by 3minutes I immediately rang back to hear that the solicitor was leaving to go to court and was told she did would ring back priority as soon as she could, and was informed she indeed went out Wednesday afternoon to change the will, my sister was there that afternoon. I asked why and what it was meant to be changed to, and was told it did not take place as mum was (as I told them) unable to communicate or function in any way. I was advised that the will and POA that was signed earlier would still be the one in place.

Half hour later after that call my mother passed away. missing her birthday today.

later in the day I called as the solicitor still did not contact me and was told she would definitely ring me priority at 5pm , I still cannot get in contact with her.

I can now not get hold of that will. I know now the poa means nothing, yet as one of the executors and the person who has been and still is trying to fix up bills and costs of things.. without proof of anything I still cannot do these things as expected of me in the roll I have. I'm not sure as of how I can get copies of the appropriate documents from these lawyers? Clearly my sister had gone to this solicitor and written some new will thinking mum was with it enough to sign it yet knowing she wasn't with it to know what she was doing,

Is there any way I can get a copy of the will, I have a copy of the will that had the mistakes on it (ie my surname incorrect and siblings named at my address..but I do not have a copy of the will that they said they would correct those mistakes. Is this copy I have any good to me in any way, i'm assuming my mother signed the corrected one and that it was still the same?

 

[Sarah J]

Hi John,

Generally, you cannot request a copy of your mother's will when your mother is still alive. This is because, only until your mother passes and a probate is granted, can any version of the will be declared by the court as final and valid.

I would suggest having a read through of this thread "Grandparents' Right to Deceased Parents Inheritance". It explains in more detail about accessing and contesting a will.

If you believe the lawyer is no longer acting in the best interests of your mother, I would recommend seeking separate legal advice and alternative legal representation. Contacting you local community legal centre could be a starting point: http://www.clcnsw.org.au

 

[John James]

Hi Sarah,

The solicitor who went out to see my mother the night before she passed (weds night) isn't the solicitor who originally went out to have mum sign the will, it is another that works at the firm. She did finally take my call yesterday, and stated that she was working for my mother.. I can only assume that the original solicitor assigned her to take over? But she said she went out to change the poa to take my sister off.. (and hinted at changing the will because my brother owed my mother a lot of money she asked to be returned) I find this rather bizarre considering my sister was there too and the solicitor would not have gone out there to do that without being paid for it and advising me of that I would have thought. I believe that my sister paid her to attempt to change the will, as the secretary implied as well. Hence the lack of trust not to mention the many brush offs when asking for weeks why the papers were not sent / no return calls etc.

My problem now is, that she said we need to do 'probate' now and was talking as if she is going ahead and doing this..

With the other 2 siblings and myself as executors and the already hostile situation from what has occurred in the last few months and the fact that this solicitor is working alongside my sister, I certainly don't wish her to be involved in this from here on in.

What happens in the situation where the executors are totally against each other and will not agree. Does the solicitor who signed the will have to be the one that does probate? What if my sister keeps her on and I had another solicitor? is that possible?

They are already threatening me re: possessions they claim my mother wanted them to have that she didn't. I was told to store properties that mum said they could have in storage which I did..and they were going to get the rest when coming back from overseas a month ago..but they decided not to go and those things had to be taken away. The property mum said they could have they are going to get in the morning, but she has already indicated there will be trouble if things she wants arnt there. another reason I suggested to my mother that she allow the public trustee to be executor..but the other 2 disagreed because they would lose money from the will.

This situation with all 3 is not good especially as they have suggested that majority rules and will attempt to take me off as executor and join together to lie about the property.

 

[Sarah J]

Hi John,

I'm sorry for your mother's passing.

Probate should be done as soon as possible. Probate is basically the process of court validating a will as the final and valid version of a deceased person's wishes. Once probate is issued, the executors can go ahead with distributing the assets. You can contest a probate if you believe the version presented is not the final or valid version. My previous post provides further information on contesting wills, as well as: http://www.legalanswers.sl.nsw.gov.au/guides/wills_estates/contesting_wills.html

Given that you disagree with the current solicitor's actions/course, you should seek separate legal advice in grounds to contest the will and decisions made by the executors.

Hope it all goes well.