Elder abuse, inheritance impatience and disputing an estate

Understanding elder abuse

Elder abuse is defined by the WHO in the Toronto Declaration of the Global Prevention of Elder Abuse ‘a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person’.

The abuser is typically someone close to the elder; for instance a child, grandchild, partner or close friend. It is common that the abuse occurs by a person close to the elder because it typical that the abuser is someone the elder relies on for care. There are various forms of elder abuse by way of physical, psychological, emotional, sexual and financial abuse. The abuse is inflicted upon the elder by way of verbal or physical abuse and financial abuse usually involves the loss of assets held by the elder.

Research has shown that elder abuse occurs due to social attitudes and views of elderly people. Ageist attitudes can cause people to abuse elderly persons. As well as a carer’s failure to cope with the elderly person’s needs, which causes frustration, anger and ultimately abuse towards the elderly person.

What is inheritance impatience?

As the years progress, older Australians are living longer and as they do, younger Australians are becoming impatient when it comes to receiving their inheritance. This is another leading cause of more cases of elder abuse.

Inheritance impatience leading to financial abuse is typically caused by a relative who is appointed Power of Attorney for the elder. To prevent financial abuse from occurring is it essential that when choosing the person to be appointed your Power of Attorney, you choose the person who is extremely trust worthy and dependable. If an elderly person finds themself in a situation of financial abuse it is of critical importance to revoke the Power of Attorney immediately. If the elderly person has mental capacity, they must provide to their Attorney a revocation notice, which informs the Attorney in writing that the Power of Attorney is revoked. There is no prescribed form for a revocation notice. It is acceptable to write a letter to the Power of Attorney and sign it accordingly.

Unfortunately, majority of the time, financial abuse occurs because the elderly person does not have the mental capacity to recognise the abuse being inflicted upon them. In these circumstances, it is incumbent upon another relative, friend or doctor of the elderly person to recognise the behaviour of the Attorney. With supporting evidence an application can be issued in the Victoria Civil and Administrative Tribunal (“VCAT”), seeking an Order to remove the Power of Attorney, due to financial abuse. Once an Order is made by VCAT to remove the Power of Attorney, an independent administrator is usually appointed to manage the affairs of the elderly person.

Legal implications and estate disputes

Elder abuse is considered a form of family violence. This means that the legal protections available to persons who are exposed to family violence also apply to persons experiencing elder abuse. Accordingly, a person experiencing elder abuse has the right to apply for an intervention order. Pursuant to s 24 of the Family Violence Protection Act 2008, a police officer responding to an incident of elder abuse can invoke a Family Violence Safety Notice. The Family Violence Safety Notice is immediate protection for the abused person that remains in place until an application for an intervention order can be determined by the Magistrates’ Court. Upon an application in the Magistrates’ Court, a Magistrate can make a final determination for an Intervention Order, which can remain in place for several years.

Another form of elder abuse can occur by way of undue influence or pressure upon an elderly person to make changes, they wouldn’t otherwise make, to their Will. This will sometimes occur between siblings because of a broken family unit. For example, one son or daughter may pressure their elderly mother or father into changing their Will in a way which favours them, to the detriment of another sibling.

Contesting a Will on the grounds of undue influence

Contesting a Will on the grounds of undue influence requires proof of the following:

• That the Will leaves property in such a way that would be considered unusual. For instance if an immediate family member, such as a child or spouse, were left out of the Will without an obvious explanation.
• That the testator was dependent upon the person who unduly influenced them.
• That the testator was vulnerable to the undue influence because of an illness or mental incapacity.
• The influencing party took advantage of the testator and received a benefit from the pressure so applied.

Claims for undue influence are notoriously difficult to prove, because clearly the testator cannot attest to their motivations for distributing their assets in such a way. Accordingly, the courts must rely on other witnesses to speak on their knowledge of the testator’s wishes and the relationship between the deceased and the person accused of applying undue influence. Therefore, subject to the claimant being an eligible person pursuant to the Administration and Probate Act 1958 (Vic), it is more practical to issue a Part IV claim.

Pursuant to s 90A of the Administration and Probate Act 1958 (Vic), an eligible person can apply to the Court for a family provision order. A family provision order is simply an order from the Court which entitles the claimant to a share in the estate. It is essential that the eligible persons holds the view that they are not adequately provided for by the estate and that the testator had a moral duty to provide for their maintenance and support. Pursuant to s 90 of the Administration and Probate Act 1958 (Vic), eligible persons means a spouse or domestic partner of the deceased, a child of the deceased, a step child of the deceased and a grandchild of the deceased, amongst others.

As an example, an adult child of the deceased can make a claim seeking an order for further provision from the estate. However, s 91A of the Administration and Probate Act 1958 (Vic) sets out several factors which the court must consider in making a family provision order. The court must consider such things as, the deceased’s Will, any evidence which speaks to the deceased’s reasons for making the dispositions in their Will, the nature of the relationship between the deceased and the claimant, the financial resources of the claimant including their ability to provide for their own maintenance and support and the needs of other beneficiaries of the estate.

Speak with an estate lawyer

If you think a relative or person you care about is experiencing elder abuse or if you think that you may find yourself in a Will Dispute, or needing to Defend a Will please do not hesitate to contact the team at Hentys Lawyers today.