NSW Deceased Estate - Following Deceased's Wishes?

[Rosie C]

A friend's husband has died (deceased estate) and she has been presented with a will drawn up as he lay in palliative care. The husband had all properties and bank accounts in his name only and the new will was devised with the help of his daughter. It leaves 2 properties to the daughter, allows the daughter to control the release of funds to her mother from an overseas investment bank account in England and leaves 50% of the marital home to the daughter on the death of the mother. My friend is estranged from her daughter and had been prior to the death of her husband and, due to the daughter continually entering her home and verbally abusing her, has commenced proceedings to obtain an apprehended violence order (AVO). The executors are the daughter and her estranged brother. My friend is a pensioner and is frightened and confused. Are the deceased husband's instructions legal and what can my friend and her son do re execution of the will when the daughter is the subject of an AVO?

 

[Ivy]

Hi Rosie,

A lot is potentially at stake here, so my first suggestion is that your friend seek legal help from a solicitor.

Regarding your first question, are the deceased husband's instructions legal? There are certain circumstances under which a will is not considered to be legally valid. These include when the document is drawn up under duress and when the deceased didn't have the decision making capacity to draw up a will.
In this case, your friend's daughter may have pressured her father to write the will and if he was in palliative care, his decision making powers may be questionable.

I have a question about one part of the instructions: was the family home in the joint names of your friend and her husband or was it in her husband's name only? That is important to the validity of the instructions regarding the property rights over the home.

I'm not sure how the AVO will affect the execution of the will. The verbal abuse and intimidating behaviour may go towards evidence that her husband's will was created under duress.

 

[Rosie C]

Thanks Ivy, all property and money was in the name of the deceased as they are elderly and that's how things were done in their world. My friend never worked outside the home so her husband claimed ownership of everything. The latest will, made in the hospital, is witnessed by the daughter and her solicitor and contains errors in surnames. My friend has applied for legal aid, as she's a pensioner, but has a wait for the appointment, hence my questions here, in an effort to ascertain possible avenues of action (or not, as the case may be) in the interim.

 

[bluetongue]

Alarm bells should ring when you say that the daughter and her solicitor witnessed the will. In NSW, a beneficiary or executor cannot witness a will if they stand to receive a benefit from the estate of the deceased. A solicitor who witnesses a will executed by a beneficiary is unlikely to have performed his/her job correctly and the Supreme Court may reject the application for probate and request that a prior will be filed with the Supreme Court. There appears to be enough concern in what has transpired for your friend to obtain a solicitor's advice. I also suggest that you request a copy of the will from the solicitor or your friend so that your friend can show it to a solicitor when she seeks advice.

 

[Rosie C]

Thanks so much. This news will give my friend a little hope that things will be put right. Her most pressing concern is that she will have no home to call her own, so thanks again Blue Tongue and Ivy.

 

[Ivy]

Hi again Rosie,

I agree with what bluetongue said above. Your friend should definitely seek legal advice because there appears to be some issues concerning creation of the will.

However even if the will is upheld, based on the information you have given me, it looks as though your friend would have a life estate in her current home. That means that no one could ask her to leave and she could stay there for the rest of her life.