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What are the legal rules around early inheritance?

Early inheritance syndrome is a phenomenon where a family member begins to feel entitled to the estate of a loved one even before they have died.

This most commonly occurs in adult children of elderly parents and can lead to elder abuse, especially if the child has financial power of attorney over their mother or father’s assets.

Financial elder abuse involves taking or misusing a loved one’s money, property or assets for personal gain. The abuser may also attempt to convince their family member to amend their will in an effort to increase their share of an estate.

So what legislation is in place to protect vulnerable people from early inheritance syndrome?

Financial elder abuse laws

Sadly, there isn’t an abundance of legal support available for people who suspect a loved one is being financially abused.

Individuals who are appointed financial powers of attorney are expected to act in the best interests of the people under their care, but there is no legal obligation to do so.

Fraud and embezzlement rules still apply, but these can be difficult to prove and elderly people are often either unaware financial abuse is occurring or do not want to report loved ones. Some victims may also be suffering from conditions like dementia or generally be lacking mental faculties.

Typically, other concerned family members, such as siblings, are the first to suspect that financial elder abuse is occurring. But unless there is clear evidence of fraudulent activity, they may not have a lot of legal options.

Challenging the validity of a will

In terms of succession law, you can challenge the will of the deceased if you believe elder abuse has occurred.

Figures from the Australian Law Reform Commission indicate that 93 per cent of people aged over 70 in Australia have written a will.

However, the person writing a will must have testamentary capacity in order for the document to be valid. In other words, they must understand what they are signing and be aware of the general value of their estate.

A will is also invalid if the individual was unduly influenced, either through threats, blackmail, coercion or other means, while preparing the document.

Proving a will as invalid can be difficult, but witness testimony, legal documents and other evidences can give you the best chance of success.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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