The fight over an inheritance can bring out the worst kind of greed among the loved ones left behind.
When an elderly parent dies, brothers and sisters often bitterly squabble over an estate rather than simply agreeing to divide up the assets equally.
Selling the houses, shares and other assets from cars to boats isn’t always straightforward, with manipulation often occurring.
This is especially so if blended families are involved, and there’s a gold digging step-parent or disaffected children from an earlier marriage.
Then there are the parents giving a bigger slice of the estate to a needier child – with their siblings only finding out when they are grieving.
The oldest baby boomers, born after World War II, are turning 80 next year, with Australian men having a life expectancy of 81 compared with 85 for women.
That means the biggest generation born during the twentieth century is set to start dying in greater numbers, creating a lot of work in the Supreme Court for estate lawyers.
An estimated $3.5trillion is set to be transferred from older to younger generations during the coming decade, marking the largest intergenerational transfer in history.
University of New South Wales law professor Prue Vines tells me death often brings out the worst in people – leading the greedy to challenge a will in court
Greed, wealth and entitlement
University of New South Wales law professor Prue Vines tells me death often brings out the worst in people – leading the greedy to challenge a will in court.
‘If you’re talking about general human behaviour, when there’s a big lot of money, people tend to target it,’ she says.
‘I just have observed that people who everybody else always thought were not particularly greedy, suddenly you see them bring these [legal] actions when you wouldn’t have thought they would.’
In one case in western New South Wales during the 2010s, a man in his forties with no agricultural expertise fought to stop his 78-year-old mother inheriting a farm from his grandfather who died in his nineties – during a drought.
‘We all know that we have a less pleasant side and we might have tendencies that we’ve tried to control, to be a decent person,’ Prof Vines says.
‘Sometimes that control seems to break for people, especially when there’s a big shock. When there’s money involved, people tend to feel “that’s a lot of money – I should get at least some of it”.’
Wills and estates specialist Lisa Barca, a Sydney-based partner with Turner Freeman Lawyers, says the child who cared for the elderly parent often believes they are entitled to get a bigger slice of the estate.
‘What we’re finding a lot at the moment is people who look after the elderly feel that they should be better provided for,’ she tells me.
Wills and estates specialist Lisa Barca says the adult child who cared for the elderly parent often believes they are entitled to get a bigger slice of the estate
‘There’s always this tug of war. “If I look after mum and dad, and give up my job to ensure they don’t go into a nursing home, does that mean I’m entitled to more of the estate?”‘
The late cardboard billionaire Richard Pratt’s estate was challenged last year, after his love child Paula Hitchcock took legal action to claim a stake in the Pratt family trust.
‘These really, really wealthy families – sometimes you have really, really ugly arguments about it,’ Prof Vines says.
Sometimes the well-off are more inclined to challenge a will simply because they can afford lawyers.
‘People who are actually managing quite well can really be interfering with what the testator wanted,’ she adds.
Disputes and blended families
Ms Barca says smaller estates, where there’s just a house, tend to produce some of the worst disputes, especially if the deceased was married several times.
‘Small pie, it’s a lot more difficult to chop it up,’ she explains.
‘When you think of prices of property in Sydney, and that people need a roof over their head, how do you chop that pie?
‘When there’s a multimillionaire, everyone gets something. With estates like that, there’s enough money to go around so that everyone is likely to get a prize. But when there’s just one house, and there’s a little bit of cash that covers the funeral, how do you divide that pie when there’s a second wife and young children?’
Children from a first marriage, feeling forgotten, are often the ones more likely to challenge a will.
‘What’s coming across my desk more often now is children of a previous marriage feeling they’re not adequately provided for in a will,’ Ms Barca says.
Things can get particularly messy if the deceased her left the estate to the new spouse.
‘There’s nothing stopping that new spouse from then changing the will to leave it all to their own kids so those children from a previous marriage sometimes miss out if they don’t make a claim,’ Ms Barca says.
While blended families come in all kinds, in Australia it is not uncommon for older divorced men to end up married to younger women from Asia, which can cause anxiety for adult children.
The elderly are particularly vulnerable to being manipulated into giving someone a large chunk of their will
The worst disputes can occur if the deceased hadn’t told their children about some surprises in the will
‘It’s older men wanting women to look after them and they get them from overseas,’ Ms Barca says.
‘The will kits gets used to say everything goes to this spouse and it causes issues.
‘It’s that second spouse versus children from the previous relationship that’s the most common battle that we see.’
But the lawyer, who has specialised in estates since 2016, says it’s unfair to entirely blame younger stepmothers for court disputes after the older husband dies.
‘It may be that the children know that this is their only opportunity to get something,’ she says.
A husband with a much younger second wife can agree to leave everything to the children from his first marriage by getting his spouse to sign a Section 95 agreement in New South Wales, under the Succession Act 2006.
This effectively acts like a pre-nuptial agreement, which sees the young wife forfeit her right to contest the will.
But it is also more likely to result in a divorce, with few wives wanting to give up the right to contest a will.
‘It’s like a prenup on death,’ Ms Barca says.
‘That sometimes results in break-ups because the spouse won’t sign it.’
Surprises
The worst disputes can occur if the deceased hadn’t told their children about some surprises in the will.
These surprises often take the form of some children getting more than others, or being cut out entirely on the grounds ‘they don’t really need it’.
Prof Vines says: ‘What sometimes happens is the parent has thought, “My youngest never got his act together, he hasn’t done well [and] he actually needs more. But the others have done quite well and I don’t have to worry about providing for them.”‘
In the midst of grief is the worst possible time for the other siblings to find out they are getting less in the will.
In the midst of grief is the worst possible time for the other siblings to find out they were getting less in the will
‘If that all happens in an emotional, tense and difficult atmosphere when someone’s just died, and that’s the first they’ve heard of it, then they may go off.
‘The lesson is, if you want to do something in your will that isn’t absolutely equal between all children, you really should talk to them in advance and explain.’
Ms Barca says elderly parents often keep their intentions from their children because they don’t want a confrontation while they’re still alive.
‘That’s very common,’ she adds.
‘If that is going to cause a dispute within the family during the person’s lifetime, and they know that, then they will keep it a secret.’
If parents don’t want a confrontation about an issue like that, and aren’t prepared to tell their children, they are advised to explain their intentions clearly in a letter.
‘I sometimes get a grandparent to write the specific reasons as to why they’ve done the will the way they have and we keep that with the will,’ Ms Barca says.
Will kits
While paper will kits from the post office can be convenient, Prof Vines says legal language can easily be misunderstood, leading to wills that don’t reflect the intention of the deceased.
‘They quite often do things that mean that the will isn’t doing what they wanted it to do,’ she says.
‘The law of how to read wills is technical – if you’ve got any kind of complicated family, or you’ve got property that isn’t really straightforward like your house and some shares, then you might have said things in your will that don’t mean what you think they mean.
‘The drafting of a will is actually quite complex; it takes quite a long time.’
In some cases, a minor beneficiary can inherit the most from an estate, even if that wasn’t the intention.
‘It’s possibly to write a will in such a way that the person you wanted to get the most is actually getting the least,’ she says.
‘You run the risk, if you do it yourself, of making it impossible for some particular person to get something or because you don’t know the actual rules about how you have to pay the debts and in what order.’
Online wills can also be more open to manipulation, especially if someone is sitting next to the individual making the will, and telling them what to type – or even typing it for them.
‘In my view, there’s a really big problem with online wills, which is we just don’t know who made it,’ Prof Vines says.
‘The person does it online, they send the thing in; they have no real way of knowing that that person was sitting there, doing the typing themselves and even if they were, they weren’t sitting there typing with somebody next to them saying, “Now, write this and now put my name in.”‘
To save grief later, it is often better to hire a solicitor to draft a will, and ask upfront what their fees are.
Undue influence
The elderly are particularly vulnerable to being manipulated into giving someone a large chunk of their will.
‘That is a very, very difficult problem – undue influence in probate occurs when somebody ends up not exercising their own will but basically become a conduit for somebody else,’ Prof Vines says.
‘This is a really big problem for older people and that’s something that lawyers are more and more trained to look for.’
One possible sign of manipulation is when the elderly individual hardly talks in a meeting with a lawyer, and a prospective beneficiary instead speaks on their behalf.
‘For example, 20 or 30 years ago, a solicitor might have seen the same old lady come in with her daughter, and let the daughter do most of the talking,’ Prof Vines says.
‘That would not happen now – it certainly should not happen because there’s too much danger that the mother’s just telling you what the daughter wants you to tell her.
‘They would see them by themselves now.’
Ms Barca says she often has suspicions about undue influence.
‘I have to say, I sometimes question the person…
Read More: Don’t let an inheritance war destroy your family: Experts reveal infuriatingly common