Size Can Be A Problem

Size Can Be A Problem

Before the introduction of television as a form of contraception, there were few effective electronic conjugal distractions for many of us at night.

As a consequence, the current older generation tended to produce a large number of children. In their later lives, that fact has created a series of conundrums for older people that we often need to advise on as elder lawyers.

Two in particular relate to the making of a Will and the making of an Enduring Power of Attorney. This is the first of two articles on the issues and this first one relates to the making of a Will.

Picture this not uncommon story:

  • Dad has died and mum, in her early 80’s, has 5 adult children;
  • They have provided financially for their adult children during their lives in varying amounts in proportion to their childrens’ varying levels of success or lack of achievement;
  • They have neSizever documented this assistance; and
  • It comes time for mum to make a new Will following the death of her husband.

What do you think are some major issues confronting her? Here are a few that can arise:

  1. She may want to provide more for those less successful children than the successful ones;
  2. She may want to make it simple and just provide for each of them equally; or
  3. She may want to ‘square the ledger’ and take into account the benefits some of the children have already received so that the other children are not disadvantaged in what they receive from her estate.

Scenario 3 is a commonly chosen one as it appeals to the idea of fairness in a parent’s mind. However, it comes with another issue. Regrettably, neither mum nor dad have ever recorded anywhere how much they have provided to the children let alone on what basis eg gift or loan. As a consequence, such a Will is almost certainly going to result in a dispute between the children when mum dies simply because of lack of evidence about the financial assistance given.

Ultimately, providing for your children during their lives may be a good thing but unless you keep a record of it and the basis upon which it was provided, it can be a bad thing.  It may be well intentioned but poorly executed.

Best to talk to us before you sign that cheque or EFT those funds to that expectant child.

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Authored by: Brian Herd

Brian is a partner in the firm and has been a lawyer since 1983. He is recognised as one of Australia’s leading experts in the areas of elder law, retirement, disability and aged care. Brian has extensive experience in life planning for older people and the legal issues impacting on them including making Wills, administering estates, disputes over Wills, superannuation, social security, retirement villages and aged care, incapacity, the Guardianship Regime, the loss of a spouse or the ‘suddenly single syndrome’, planning for disabled children, elder abuse, enduring powers of attorney, advance health directives, family agreements and disputes and mediation. His expertise also extends to the structuring of business affairs and advising on the impact of the transfer of interests in family businesses including trusts and family companies. As a passionate believer in the crucial role of charitable and community organisations, he also spends a significant amount of his time advising the not for profit and community sectors on Board governance, restructuring and constitutional review, mergers and acquisitions, legal compliance and risk management especially in the aged care, retirement and disability sectors. Brian is a popular presenter in public forums on elder law issues and is also regularly invited to address the changing legal dynamics and needs of the aged care and disability sectors at industry conferences. In 2014, for the second year in a row, Brian was named one of Australia’s best lawyers in Retirement Villages and Senior Living Law. Qualifications, Memberships and Other Contributions: •Bachelor of Arts – University of Queensland •Bachelor of Laws (Hons) – University of Queensland •Deputy Chair – Queensland Law Society’s Elder Law Committee •Former part time member – Queensland Law Reform Commission •International member – National Academy of Elder Law Attorneys of America •Member – Queensland Law Society •Approved Facilitator for Corporate Governance – Aged Care Standards and Accreditation Agency •Member – QPAC Choir •Adjunct Lecturer – Griffith University

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