Law Talks Episode: Changing your Will to benefit one beneficiary over another

Robyn: Good morning and welcome to another edition of 4CRB’s Law Talks. And today we have joining us from Attwood Marshall Lawyers, Wills and Estate Partner, Angela Harry. Thanks for joining us today, Angela. 

Angela: Robyn, thank you for having me.

Robyn: Well, today we’ll be talking about things to consider when changing your will later in life. There are potential pitfalls you should try to avoid, especially if such changes involve adding or removing beneficiaries, Angela.

Angela: Yes.

Robyn: So, tell us about the estate planning scenario you’re talking about today. 

Angela: So, there was an article that came to my attention. It was from the view of an adult daughter who was involved in her mother changing her will.

And the article basically outlined that there were three children, three daughters, but one of those daughters had taken on the caring responsibility for her mother later in life and really did it without the support or assistance of her other two siblings. And so the article talks about how much work this daughter has done in caring for mum, what she’s given up in time and earning income herself and ultimately how she has suggested to her mother that it’s really appropriate for mum to amend her will, so that the majority of the estate goes to her to,  I guess compensate her for the care that she has provided.

Robyn: And how common an occurrence is it for older people to change their wills later in life? As a result of examples such as this one, where one child has ended up caring for them or perhaps choosing to exclude former beneficiaries, family or friends for other reasons, perhaps unhappy with the beneficiary’s behaviour or their life choices.

Angela: This is something that we do see crop up a lot and I’m finding it more and more, particularly with an aging population, many people will rely on one child more than the others, usually someone who is close by, or someone who even moves into the family home to look after them.  And it’s usually in those later years, that they make changes to their will.

In some cases, those changes are driven by the parent. But in many instances, I have seen the child who is providing that care put a lot of, I guess, pressure on the parent to change their will.

Robyn: So, what legal safeguards should the will-maker and the new beneficiary consider if they want the new will to be binding and safe from being challenged by beneficiaries of the former will.

Angela: Look, I think there’s really two sides to this. We’re looking at, really, whose will is it? So, I think when it comes to children who are involved, particularly as parents get older, in changes to their wills. To avoid such wills being attacked, usually with arguments about undue influence or the parent not having capacity.

It’s really important that the changes to the will are driven by the will-maker.  So, they’re going to see their solicitor alone. They’re the ones making the appointments. They’re getting independent advice without that child involved. So, we can really ensure that, you know, those changes are made with the free will, without any influence or coercion, and the parent who is making those changes is doing it whilst getting advice from their solicitor about, you know, what the potential implications are by making those changes.

Robyn: And what potential recourse could the former beneficiaries have to counter the change in the will, before and after the will-maker dies? Could they argue, as you just mentioned, coercive control, loss of capacity, and challenge the new will?

Angela: Definitely. This is something that we are seeing more and more.

There’s, I guess, two ways for people to contest or challenge a will. So, you often hear about people contesting wills under the family provision legislation where they’ve been left out. So, that’s one way to contest a will. But the other is to challenge the validity of a will. And that’s where the argument’s about undue influence, lack of capacity, fraud are really relevant to a situation like this. And what we really need to do in a scenario like this is go, all right, how did this will come about? You know, who was involved? I mentioned before that a will-maker really needs to be the driving force behind changes to their will.  They need to see their solicitor alone. They need to get independent advice because when we find out that wills have been changed and then you discover that the beneficiary was in the room, the beneficiary made the appointment. In some cases, the beneficiaries has contacted the solicitor and said, here are the changes that you know, mom or dad wants to make.

That’s when you’re really going to investigate and go, well, hang on, who actually gave the instructions here? And you know, was it what the will-maker wanted or were they pushed into this? 

Robyn: And just on that, what duty does an estate planning lawyer have to ensure the elderly will-maker is not being taken advantage of? 

Angela: So it’s really important that estate planning lawyers, when they are taking instructions from a will-maker, they ensure that it is the will-maker that’s giving those instructions.

So, I sort of touched on it before, but again, it’s seeing that person alone, not letting people, particularly ones who are going to be beneficiaries, who are benefiting more under these newer wills, come into the room. If there’s any cause for concern or doubt about capacity, for instance, if you have someone who is in hospital or in aged care, you want to make sure that they actually understand what they’re doing.

So, solicitors have duties to their clients and it’s really important, you know, in this day and age when we’re seeing, you know, older clients, there’s the prevalence of elder abuse, it’s the solicitors to be mindful of, right, what’s happening here. Who am I taking instructions from? And stopping that, you know, potential for someone to be taken advantage of.

Robyn: And Angela, does the will-maker have to disclose that they have changed the will? If not, is it better to keep the change in the will private to avoid challenges before the will-maker dies? 

Angela: Oh, this is a really good question. And I think there’s pros and cons to both approaches, I guess, to answer your first part of your question, no, they don’t have to tell anyone that they have changed their will.

And many people will keep their will confidential. So, I guess the pro of keeping it confidential is it is private. So, you’re avoiding those disputes or confrontations before you pass away about, you know, what’s in the will or potential to have arguments about, well, you know, you need to change it, i’m not happy with it, from some beneficiaries, but by the same token, sometimes talking to family members about what the will-maker’s intention are can prevent potential disagreements later on.

So, yeah, I think it’s, it depends on the scenario. There’s some clients who I have seen over the years who I would say, look, no, I don’t think you should be disclosing this to the family. There’s others where I’ve said, look, have you had discussions within the family because you might find that having these discussions now and explaining to everyone why you’re doing what you’re doing might stop that potential surprise or misunderstanding about why, you know, this parents, um, mum or dad has done what they did in their will.

Robyn: Yeah, okay, so what’s your final advice to our listeners on this topic today?

Angela: I think it’s really important for anyone who is making their will to go and get the appropriate estate planning advice and be really mindful of the experience now, but also the experience with beneficiaries throughout your life.

I find as people get older, sometimes there can be arguments over something really minor. You know, the children haven’t come to visit, or, the grandchildren don’t call anymore, and people can really focus on that and then forget about, you know, tens, you know, 20, 30, 40, 50 years of relationship and what people did earlier.

It’s really important to get that holistic advice from a solicitor, talk through what you’re planning to do. And also, I think sometimes even looking at the dynamics of your family, you know, is everyone aware of  what, you know, one, using the example that we started with, what one child is doing to provide that care and support and maybe it is appropriate for them to get an extra legacy or would the other step up and do something if they thought that maybe that they would be losing out on their inheritance?

It’s just really important, I think, to get independent advice and be really mindful of this is a will and what I put in this document is going to have an impact for my family and those relationships and at the end of the day, it is your will, but you really want to look at, alright, is this fair? How am I treating all my beneficiaries and making sure that that advice is received from a solicitor that is really independent and you’re not getting pressured by family members or friends to do things a certain way.

Robyn: Yeah, great advice, Angela. And I think, sometimes the importance, as you said, of having a legal professional and perhaps a disinterested third party, explaining how this all works can sometimes, help alleviate those pressures. 

Angela: Sometimes it does, and I think just talking it out with someone who’s not emotionally involved, who has legal experience and can provide a level of independence and also I guess reality test what people are doing because as solicitors, we see what happens at the other end.

So, something that might sound like a good idea in theory might not work in practice. So, getting that advice can potentially help mitigate against future challenges or disputes within a family.

Robyn: Yeah. Great advice. Thanks for joining us today, Angela. 

Angela: Thanks again for having me, Robyn.

Robyn: You’ve been listening to Law Talks here on 4CRB, which you can hear every Friday morning from 9 o’clock.