LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

Wills and Estates - Mother with Dementia

Discussion in 'Wills and Estate Planning Law Forum' started by Mazza, 15 August 2014.

  1. Mazza

    Mazza Member

    Joined:
    15 August 2014
    Messages:
    1
    Likes Received:
    0
    Elderly mother in laws will was made whilst she was of sound mind. Has been in full time care with advanced dementia. She bequeathed her home to her youngest son. Home was sold to fund her care trust. Remaining cash estate to be divided between three sons. Question: does the son who has been bequeathed home (now cash) receive the value of the then sold home or does it become part of the cash estate division? Thx
     
  2. winston wolf

    winston wolf Well-Known Member

    Joined:
    21 April 2014
    Messages:
    347
    Likes Received:
    101
    From what I've seen the courts flip flop a lot on this issue.
    One judge will say that as the home no longer exists therefore that part of the will is void(obviously there's Latin involved when they say it ;))
    Another judge will say that the proceeds of the home should be treated as the same asset, as this would be the testators wish.

    Having said that more and more the latter is the attitude of the courts.

    You may need an agreement from the other beneficiaries, but giving the youngest son the refund from the care trust is probably the way to go.
    Otherwise you need to apply to the court for a determination($$$)

    The assumes nobody is planing to contest/challenge the will.e home
    I am also amusing the home was sold by her EPOA.
     

Share This Page

Loading...