Legal cartoons and humorous comment (c) Paul Brennan. All rights reserved.

I decided on 101 reasons as I didn’t want to depress the entire legal profession by having 1,001.
Paul Brennan, Lawyer, Sunshine Coast, Queensland, Australia

Wednesday, September 3, 2014

Your Dad and his money

Warning: The is an extract from the Law & Disorder eZine which adopts a humorous approach to alert those who have yet to face certain legal issues. If your father is getting on and losing his mind, see a lawyer. However if he is only at the stage of losing his car keys, read on. 
Your Dad and his money


Has your Dad lost his marbles? If so, it is all over for him making a will in your favour, or changing an existing will to disinherit a few of your siblings as he does not have the mental capacity to do so. On the positive side once he has “lost capacity” you do not need to visit him so often, to avoid losing out.

A lawyer will often send aged clients off to a doctor to witness the will and also they will ask questions (and take detailed notes) to determine if their client knows:
  • That he is making a will?
  • How much he is worth?
  • Who he would normally leave it to and in what proportions?
  • And that he does appear sane.

The more complex the will or the change, the more “on the ball” the testator and lawyer must be.

A general suspicion of lack of capacity e.g. age and/or illness is not enough for a court, there must be clear evidence of significant doubt that the testator had capacity.

The onus of proof weighs on those supporting the will. The court will look at any suspicious behaviour (often helpfully supplied by an ex-wife). Or suspicious circumstances, such as any irrational provisions, beneficiaries excluded unexpectedly or undue influence (e.g. carer windfalls).

Trials are awash with evidence of bitter relatives and concerned neighbours together with medical evidence. Your lawyer with his notes will be a star witness.

Your lawyer may use his own sanity as a benchmark which can be a very low hurdle. The chances of your lawyer being sued in borderline cases by disinherited beneficiaries are quite high.

Therefore, do not expect any senior citizen discounts next time that you wheel your old decrepit dad in for a will. Your lawyer will check to ensure that their client is sane, whereas normally there is no such obligation.

(c) Paul Brennan 2013. All rights reserved. Paul Brennan is the author of The Legal Guide to Dying...Baby Boomers Edition which you can download from Amazon.