Hoping forum members can assist with our predicament.
My father is in his late 90s. My mother died 30 years ago. My father owns his home plus has $150K cash (He lives with me in my house). His Will (#1 made 2000) and wishes have been known to my my younger brother and I for many years - the house and 2/3 cash to me and 1/3 cash to my brother. Myself as the sole executor of will.
My brother has been bankrupt, rarely sees our father and is widely known as a persistent liar, bully, fraudster and con artist, which is why our father's Will is so unequal in distribution.
I have supported my father for the last 30 years and the last 5 years, he's resided with me as his mobility is poor and he's deaf. Another reason for the unequal allocation. I am his carer and attend to all his financial, health and quality of life matters. I receive Carers allowance.
3 months ago, my brother returned to Australia, took Dad out for lunch and before dropping him home, they visit Dad's solicitor. Dad was quite confused that night, muttering he thinks he signed papers but didn't get a copy of it, so it's not clear on what he signed. Dad worried as the solicitor only talked to my brother, who seemed to be dictating to the Solicitor.
Dad rang solicitor the next day and copies of Power of Attorney and Will were forwarded. He was horrified at the changes and clearly distressed that I was no longer mentioned at all! The new Power of Attorney, financial & medical, are signed naming my brother solely, commencing immediately.
A new Will (#2) is signed...brother listed as Sole Executor of Will and majority Beneficiary aside from 1/8 each to my 2 adult children. My name is not mentioned at all.
My brother is not returning calls and the solicitor clams up and won't revoke either the document until Dad passes a Testamentary Capacity assessment.
Dad was assessed and failed based on age appropriate demetia & that he could easily be influenced by either son. It was stated he knew what a Will was and was adamant his wishes were as per will #1.
Now what do we do?
Brother has not been seen or heard of in 3 months although he moved Dad's cash into a 'in trust' joint account. Dad refuses to allow me to involve VCAT at his age/state of health and simply wants me to contest the Will after he dies.
Last week Dad handed me a cheque for $80K from the new 'joint account' my brother set up. Dad is adamant that if he can't revoke Will #2 and write a new one then he'll start gifting his cash now, how he sees fit.
My 4 questions are:
- Is there any other way to revoke Will #2 or remove the Power of Attorney other than via VCAT?
- Dad's Solicitor advised Dad as $150K is still his money, he can do with it as he pleases...is this possible if he failed a Testamentary Capacity Assessment?
- If I accept the $80K, can my brother as executor of will demand it's return to the estate when our father dies? What if Dad died tomorrow, I look like I influenced him to gift $80K.
- Can my brother sell Dad's vacant house while Dad is still alive as Power of Attorney?
- Do I take no action while Dad is alive and contest validity of Will later?
I'd appreciate any feedback, largely to pinpoint what issue to focus on going forward. Dad's health has declined dramatically since Christmas, he is clearly heavily burdened by the last couple of months, angry at himself for going along with signing papers and is now afraid of my brother's next move.
Sincere thanks.
My father is in his late 90s. My mother died 30 years ago. My father owns his home plus has $150K cash (He lives with me in my house). His Will (#1 made 2000) and wishes have been known to my my younger brother and I for many years - the house and 2/3 cash to me and 1/3 cash to my brother. Myself as the sole executor of will.
My brother has been bankrupt, rarely sees our father and is widely known as a persistent liar, bully, fraudster and con artist, which is why our father's Will is so unequal in distribution.
I have supported my father for the last 30 years and the last 5 years, he's resided with me as his mobility is poor and he's deaf. Another reason for the unequal allocation. I am his carer and attend to all his financial, health and quality of life matters. I receive Carers allowance.
3 months ago, my brother returned to Australia, took Dad out for lunch and before dropping him home, they visit Dad's solicitor. Dad was quite confused that night, muttering he thinks he signed papers but didn't get a copy of it, so it's not clear on what he signed. Dad worried as the solicitor only talked to my brother, who seemed to be dictating to the Solicitor.
Dad rang solicitor the next day and copies of Power of Attorney and Will were forwarded. He was horrified at the changes and clearly distressed that I was no longer mentioned at all! The new Power of Attorney, financial & medical, are signed naming my brother solely, commencing immediately.
A new Will (#2) is signed...brother listed as Sole Executor of Will and majority Beneficiary aside from 1/8 each to my 2 adult children. My name is not mentioned at all.
My brother is not returning calls and the solicitor clams up and won't revoke either the document until Dad passes a Testamentary Capacity assessment.
Dad was assessed and failed based on age appropriate demetia & that he could easily be influenced by either son. It was stated he knew what a Will was and was adamant his wishes were as per will #1.
Now what do we do?
Brother has not been seen or heard of in 3 months although he moved Dad's cash into a 'in trust' joint account. Dad refuses to allow me to involve VCAT at his age/state of health and simply wants me to contest the Will after he dies.
Last week Dad handed me a cheque for $80K from the new 'joint account' my brother set up. Dad is adamant that if he can't revoke Will #2 and write a new one then he'll start gifting his cash now, how he sees fit.
My 4 questions are:
- Is there any other way to revoke Will #2 or remove the Power of Attorney other than via VCAT?
- Dad's Solicitor advised Dad as $150K is still his money, he can do with it as he pleases...is this possible if he failed a Testamentary Capacity Assessment?
- If I accept the $80K, can my brother as executor of will demand it's return to the estate when our father dies? What if Dad died tomorrow, I look like I influenced him to gift $80K.
- Can my brother sell Dad's vacant house while Dad is still alive as Power of Attorney?
- Do I take no action while Dad is alive and contest validity of Will later?
I'd appreciate any feedback, largely to pinpoint what issue to focus on going forward. Dad's health has declined dramatically since Christmas, he is clearly heavily burdened by the last couple of months, angry at himself for going along with signing papers and is now afraid of my brother's next move.
Sincere thanks.
