Contesting a will
September 16, 2015 4:09 AM   Subscribe

My mother recently died. I acted as her live-in carer, to varying degrees, over the last 11 years (mainly the last few years). Do I have a reasonable case upon which to contest the will's equal apportionment of the estate?

I am the youngest of 6 siblings and my mother (91 years) left a current will. We are not American and we do not live in the States so I'm here seeking answers based on general legal principles and I understand that every country/jurisdiction has its own twists and quirks.

The will is quite regular and there is nothing nefarious about its construction. My 2 eldest sisters are the executors of the will. The liquid assets are apportioned fairly evenly between kids and grandkids (total of ~$150K). The rest (house/land = ~$1.5M) is essentially divided 6 ways plus I get the car and I am allowed to live in the family house for a year.

I provided assistance commensurate with my mother's needs, as her abilities deteriorated over time. I am a trained nurse. There was never any 'plan' that I be a carer, it was just luck that I was here and I could help out and the vicissitudes of life between ages 80 & 90 meant that my skills became increasingly useful. Ultimately my mother was diagnosed with cancer about 2.5 years ago and my role became formalised in the sense that I began to receive a modest government pension to compensate for my inability to find/hold a full time job ("carer's pension").

I have had very light 'off the record' discussions with one of the executors (the sister I trust and love most, who also happens to be a lawyer); firstly about 18 months ago when our mother's prognosis was poor; but again, just this last week after she died, when my sis jotted down for me what she termed 'possible options for further consideration' (I asked her to write something private but concrete so I could think about it while I'm off on a 2 week camping & brain/soul-rejuvenating holiday). It's a spreadsheet of numbers with a low, medium & high sale price for the house, and it splits the estate 6-ways equally, and then allows for 3 of my siblings to each loan me equal amounts (between $20k & $30K sliding scale) so that I can purchase a 2-br apartment in a city that I mentioned - in passing - 18 months ago would likely be my destination after my mother's death. {I actually live -now, and for nearly all of my life- in a more expensive city, where such an apartment might be nearly double the price.}

So I'm here asking if these past years of care and lost income and lost opportunity (and whatever other heads of claim/compensation might be in existence) aren't worth my while contesting the will over?? The other side of the coin is that my presence has likely nearly doubled the estate's value; or my mother would have had to sell the house years ago and spend maybe half that on securing a retirement home position. Am I not entitled to a greater share of the estate than my siblings???

My larger point would be that my mother was basically following convention in the framing of the will and was not in a position to properly judge the worth of the contributions I made to her welfare or to the value of the estate. Somewhere there must be a demarcation line between the reasonable expectations of an infirmed parent on their child versus 'work' performed as a carer and nurse. Obviously I'm giving an overview here. I had free board/lodging (mostly), for instance, so I know that I would have to accept discounts and compromises at points. Only my sister (and her husband, who is not an interferer) and I have seen her proposal and knows what we have said to each other.

(by the by - I don't want a fight with my family [we get on 95+% of the time] & certainly not in court; I'd rather try to persuade them, but only if the gist of the above facts supports the idea that I have a valid position? If that's accepted then I would ask a lawyer to draft a letter to outline my claim upon the estate. If you think I am drawing a very long bow, please say so; but I've had a lot to do with lawyers and courts and despite my bias I can't see my view here as being particularly extreme or perverse or conjured. Also (and perhaps beside the point), I have a sister who is very slightly brain damaged and her getting 1/6 of the estate is my FIRST priority, irrespective of the rest; ie. the other four kids should wear any reductions that go in my favour)
posted by anonymous to Law & Government (24 answers total) 1 user marked this as a favorite
The bests answers will include the comments that you need to consult with a lawyer / solicitor, and that you would have to at least tell us where you live.

But the following is information (not advice) about the principles that apply in most American states and may well apply where you live.

A will cannot be contested because it does not appear to be "fair" in light of outside circumstances. A will can be contested if it was the product of undue influence or if the testator was not competent to understand the extent of her assets, her family, etc.
posted by megatherium at 4:27 AM on September 16, 2015 [7 favorites]

I think if you don't want a fight in court, don't contest the will. See whether the four siblings can agree that you earned more than the share the will gives you, especially if it was drafted before your caregiving.

I wouldn't get into spreadsheets and financial instruments too much. It's not going to be possible to place a precise value on the services you rendered, the opportunities you forwent, the benefits you received, and so on. Just propose something that seems more or less equitable. Maybe instead of one-sixth each, splitting it 14-14-14-14-20-24, where the 20 is your sister with the disability and the 24 is you.
posted by lakeroon at 4:29 AM on September 16, 2015

Literally no one can answer this question. There are no such things as "general legal principles" that apply across international borders. It's not that every country has its own "twists" and "quirks," it's that every country has its own laws, which may be radically different and opposite from each other. There may be some places where what you propose is required by law. There may be some places where even asking could strip you of the share that the will currently awards you. We just don't know.

You need to consult a lawyer or appropriate legal professional licensed in your jurisdiction. Even if the rest of your siblings agree to up your share, there may be legal or tax ramifications that you need to know about. For any of this, you need actual legal advice. And no one on Metafilter can give you that. But especially not without knowing what laws apply to you.
posted by decathecting at 4:40 AM on September 16, 2015 [11 favorites]

there may be legal or tax ramifications that you need to know about

In particular, if your siblings gift part of their inheritance to you, it is likely to be taxed twice (once as inheritance, then again as a gift).

Of course this depends on where you live, which you helpfully omitted.
posted by ryanrs at 4:47 AM on September 16, 2015

In particular, if your siblings gift part of their inheritance to you, it is likely to be taxed twice (once as inheritance, then again as a gift).

This is not necessarily true depending on where you are. OP you should have mentioned your country.
posted by smoke at 4:53 AM on September 16, 2015

Presumably your mother was of sound mind when she made the will, and it doesn't sound like that ever changed. Therefore, on what basis do you think you would be justified in contesting the equal 6-way split? On the grounds that you were her carer, and therefore should have a greater share? But you have been paid for that, with free room & board as well as the car, plus that 'carer's pension' you mentioned. So yes, you have been compensated for your work. You might feel that was not adequate compensation, but that's the arrangement you freely chose to accept.

If one or more of your siblings decides --- on their own, with no input from you or anyone else --- that they want to give you a portion of their share, that's all well and good; but if they feel they are being pressured or bullied into it, it's just going to create massive ill-will that will never go away.

So, you have a decision here: you can try to contest the will, which will surely produce a lot of bad feelings in the family, and is unlikely to produce the result you desire; or you can accept the will as it stands, and never bring up your perception of its unfairness to anyone at any time.
posted by easily confused at 5:49 AM on September 16, 2015 [15 favorites]

I’m sorry for your loss.

If you were in the UK, then there is settled law that a will must make suitable provision for the children of the deceased - you can’t simply disinherit your children. However, you stand to inherit 1/6 of the estate & the rest is split between your other siblings so I doubt you’d be able to challenge the will on those grounds.

If you are in the UK & can convince (some of) your siblings that you ought to receive a greater portion of the estate, then the magic term to avoid any form of double taxation is 'Deed of Variation' - with the agreement of all parties concerned (ie those that lose out & those that gain) a will can be altered after the fact to change the amounts individual beneficiaries receive. You’ll need the services of a lawyer familiar with probate law to do this. Note that this is only really necessary to avoid double taxation on the transfer if the original beneficiary dies within seven years - gifts are in general untaxed in the UK otherwise.

But this is exactly the kind of thing that varies enormously by state, so I’m afraid if you can’t tell us which country you live in, you’re not going to get much help here.

(easily confused: The car may be effectively worthless & free board in a place you don’t want to be isn’t worth anything if it isn’t transferable. A carer’s pension is pretty derisory compared to a nurse’s salary too. All-in-all the OP has clearly given up a lot in order to care for her mother. Whether her siblings will agree to compensate her is of course another question entirely!)
posted by pharm at 6:00 AM on September 16, 2015

My condolences, OP.

I think it should be obvious by now that no-one here will be able to answer your question. Please see a wills & estates or probate lawyer (who has some experience in challenging wills - some lawyers only really deal with uncontested wills) in your country. If the will can be challenged that will be money well spent. It's not like you would then have to take your siblings to court. If the advice is that you don't have any recourse I think it'll still be worth it for peace of mind and knowing where you stand.
posted by pianissimo at 6:22 AM on September 16, 2015 [1 favorite]

Mod note: Update from the OP:
I'm in Australia.
posted by taz (staff) at 6:23 AM on September 16, 2015

A year of living in a $1.4m place, assuming the money would have returned 4% is $56k, so arguably they are already effectively lending you that money by not having access to the capital right away(4% just pulled out of the air, although I don't think term deposits or rental returns are that in general right now). You could try and negotiate on that basis - e.g. instead of you staying in the house for a year, sell the house and they get access to their capital now, but loan some of it to you.

For the legal position or assistance in negotiating the above, contact your state Law Institute and get a referral to someone who does wills. They will usually give you a free half hour which should be enough to determine if it is worth pursuing a case.
posted by AnnaRat at 6:35 AM on September 16, 2015

I can't see any grounds. You were under no obligation to care for your mother. You had no formal agreement for compensation for your time and professional expertise with your family or with your mother. Your siblings can make contributions towards "making it right" out of their shares, but it's a moral right not a legal one. These would be gifts, and you can't force them to make them.

You can probably consult with the carers association or whatever the Australian national body is, but while you may be owed morally, I've never come across anything that would suggest you are owed legally.

If both of the executors are of the same mind, however, they may have scope under Australian law to compensate you from the assets of the estate as an outstanding debt before the remainder is divided between the beneficiaries. I have literally no idea what Australian law says and would suggest you consult a probate attorney.
posted by DarlingBri at 6:48 AM on September 16, 2015 [1 favorite]

The fact that the will states that you get the car and are permitted to stay in the house for a year suggests that the will was re-written with your particular situation in mind. It might not be the resolution you'd hoped for, but it'll be harder to contest the will if it contains clear signs that your mother specifically thought about and allowed for your personal sacrifices on her behalf. I am not a lawyer, nor have I even been to your country.
posted by jacquilynne at 6:53 AM on September 16, 2015 [6 favorites]

Am I not entitled to a greater share of the estate than my siblings???

I don't think so, no. It sounds like you're getting some extra consideration by living in the house for an extra year and you did receive the carers pension during some of that time. I feel like if this were the situation you wanted, more consideration after your mother's death, the right way to have straightened that out would have been to have brought it up with your mother while she was alive.

I know this is probably not what you want to hear and you're probably frustrated and upset, but if it were me I would talk to the sisters about maybe a little informal consideration but I would not contest the will because I don't think there are any grounds through which you could actually contest it legitimately. If you mostly get along with your family, I think it's going to be pretty difficult to contest the will in any sort of friendly fashion. I have been in executor and worked with lawyers on a couple of estates (although in the US) and it doesn't seem like this sort of after-the-fact consideration is really something that comes up too often. Sometimes you see the opposite where somebody who is caring for somebody receives a windfall from that person's estate after their death, and it comes as a surprise to the surviving children.

It doesn't sound really like there was an agreement with all the siblings that you would be doing this as your job. And given that it doesn't seem like reimbursement for the "job" you did is something that would seem legitimate to everyone. I can totally see your perspective on this issue, but I'm not sure if you're going to get a lot of legal traction for it.
posted by jessamyn at 8:10 AM on September 16, 2015 [4 favorites]

I don't think your take on this is perverse, and it's a shame your mother wasn't able to give the distribution of her assets more in-depth consideration. But if it's all legal, and your sibs don't agree with your ideas about the split (and since grandkids are in the mix, I think they'll be focusing on them - and money going to your sibs is also going to their kids), you'll be up for a fight. A lawyer can tell you what your odds of winning are, but is an emotionally fraught lawsuit a) the best use of the energy you have available to you right now, when you probably need to reorient yourself and get moving in a new direction and b) worth the degradation of your relationships?

I agree that you should talk to a lawyer, to see what is possible and to set your mind at ease, if anything, as pianissimo said.

I think, though, that you should try to address this in a non-adversarial way - talk to your siblings. (In as calm a manner as you're able - you're showing some understandably strong feelings here.) It sounds like they're willing to facilitate your next move. Have you talked with them openly about your current plans (vs. what you thought 18 months ago), if you're sure of them?

(I think a useful way to spend energy would be on working with your sibs to get the best price possible for the house.)
posted by cotton dress sock at 8:12 AM on September 16, 2015

Don't contest the will. You did your job out of love and it seems that love also extends to your siblings. They appreciate and respect the sacrifice you made for your family and that will come back to you in other ways.
posted by any major dude at 8:13 AM on September 16, 2015

You did your job out of love and it seems that love also extends to your siblings. They appreciate and respect the sacrifice you made for your family and that will come back to you in other ways.

In case you're fuming at this idea, OP, I disagree completely that this is a reason to not be concerned about money. Your sacrifice probably did add value to the house (or prevent loss) and certainly saved your sibs a lot of money and aggravation and time. I don't know what Australia pays caregivers, but if it's like everywhere else, am sure it doesn't come close to what you lost in time and energy, or what your work was worth.

The problem is that it seems that there was no discussion in advance about how you were to be compensated, and there is now a legally binding will.
posted by cotton dress sock at 8:36 AM on September 16, 2015 [3 favorites]

I don't want a fight with my family

Then don't contest the will. If you do, I can practically guarantee you that at least some of them will never speak to you again, and it's possible you will cut yourself off from your entire family. Even if you win in court, is it worth it?

For what it's worth, I was involved in a similar situation: one of my brothers was the primary caretaker for my father after he had a stroke, living with him, cleaning up after him, and dealing with his increasing paranoia and rage. It turned out dad only left him half as much as he left the other two brothers, ostensibly because we were married and he wasn't (it's obviously more complicated, but we won't get into that). The brother who'd been the caretaker and gotten shafted was heartbroken and furious, but had no legal recourse (this was in California, and of course we talked to a lawyer). My wife and I made half the difference up from our own inheritance, and have been good friends with him ever since; our brother stood on his legal grounds and kept his entire share, and the caretaker brother no longer speaks to him.

tl;dr: Inheritance battles break up families. Tread carefully.

On preview:

They appreciate and respect the sacrifice you made for your family and that will come back to you in other ways.

This is bullshit. Well-meaning bullshit, obviously, but come on, you have no earthly idea how the poster's relatives feel. Unfortunately, neither does the poster, who will now find out. Again, from personal experience, I suspect it's likely that some of the reactions will be deeply disappointing. Money is like an X-ray: it reveals all sorts of ugly things.
posted by languagehat at 8:43 AM on September 16, 2015 [9 favorites]

I think if you want to have this conversation with your family, you need to put forth a solid alternate proposal that takes into account real costs of what you put in, and what you would like.

If I were suggesting this out of thin air, I would ask your sister if she were willing to propose that instead of the original split, you get one years' rent/mortgage payments off the top of the sale of the house, instead of living there.

I would not dream of suggesting something where you now owe money to all of your siblings (breeds resentment for you and them.)
posted by mercredi at 9:08 AM on September 16, 2015

If both of the executors are of the same mind, however, they may have scope under Australian law to compensate you from the assets of the estate ...
posted by DarlingBri at 9:48 AM on September 16 [+] [!]

Exactly my thinking. You could bill the estate for services rendered. Your bill would become part of the probate process, be paid out of the estate's assets prior to final distributions. That is if everyone is in agreement.
posted by Gungho at 9:29 AM on September 16, 2015 [1 favorite]

I agree with DarlingBri and Gungho. Bill the estate. A private nurse would have cost the estate at least $300 per day on a casual basis. Billing the estate for a years' basic RN wages would seem fair.

Room, board and bills is not fair compensation for your work. By caring for your mother, you lost superannuation contributions from an employer and advancement in your career. These are financial costs that are all too often left to daughters to bare without any recompense. This is made particularly worse for you because of the increase in living costs - rent etc, since you gave up work to care for your mother.

And those people who say: "you chose to do it, now wear the consequences" can go take a good long hard look in mirror. That is not how compassion works.

Both NSW and Victoria have different laws regarding challenging the will. It would very much be worth one hours' time of an estate lawyer in your state (@$250) to get an idea on what can be done.

You have my condolences for your loss.
posted by Thella at 1:02 PM on September 16, 2015 [5 favorites]

I think the most universal thing to consider is that laws are only tangentially related to justice.
That is, "legal" doesn't mean "that which is right". It means "that which we have agreed on". Its purpose is to provide a predictable outcome, not necessarily a fair one.
posted by Omnomnom at 1:54 PM on September 16, 2015 [2 favorites]

FYI OP here in Aus, you and your siblings won't pay any tax on money gifted to you. Gifts are tax-free, here.

We had a different, but similar situation when my father died. Despite the fact the writing had been on the wall for a little while, and he'd expressed an intention to update his will, he never did.

In our case, a voluntary split was the easiest way of dealing with things. Alternately, depending on the source of the money, the estate can pay out different amounts, if everyone agrees - however, there's a tonne of bureaucracy and stuff involved, I really don't recommend it unless you absolutely have to; you will be paying unnecessary money to a solicitor etc.

Do not challenge the will unless you feel absolutely compelled to do so. In addition to guaranteeing bad feelings with your siblings it will take years (not exaggerating, this stuff happens slowly), to resolve, and while you're waiting no one will see any money at all, except the army of solicitors you have to engage.

Based on my experience of wills and estates, you have no legal basis for a challenge unless you can prove your mother was not of sound mind.

Best of luck, OP.
posted by smoke at 5:15 PM on September 16, 2015

This may be relevant - from Australian law

The new law also refers to domestic relationships. It defines these as:

a de facto relationship; or

a "close personal relationship" between two adults who live together and provide "domestic support and personal care". Note, if this care and support is provided for a fee or through a government scheme then the relationship is not a "domestic relationship".

A domestic relationship therefore includes relationships between siblings, and parents and children.

If you are in a domestic relationship you have the same rights under this new law in relation to maintenance and property division as a person in a de facto relationship
posted by Hot buttered sockpuppets at 5:53 PM on September 16, 2015 [2 favorites]

If you value your family at all, don't contest the will.

You didn't mention it, but in addition to the carer's pension you received, presumably you received free room and board during the time you were taking care of your mother. Some people will consider that compensation, particularly if you were able to hold any outside work during any of that time. I'm not saying it's right, I'm just saying that's how some will view it.

Now, in an ideal world, the executors of the estate would get together with the other siblings, without you being present, and advocate on your behalf to receive a larger share. Perhaps they could all give a percentage, perhaps one would give up say $10K while another would give up only $5K (using round numbers for the sake of argument, those numbers are not tied to the numbers you've cited in your post). Something like that might come across as a compromise to all.

It may very well be that one or more of your siblings is not willing to share the inheritance with you in this manner.

In that event, you will need to focus on the fact that the distribution of assets is not a decision that any of your siblings made, it is a decision that your mother made. It may be regretable that it doesn't fall more in your favor, but I am certain that your mother made plans to divide her assets equally *precisely* to avoid any ill will between the siblings. She unfortunately did not take into account your loss of income, but then again it seems from what you've posted that neither did you when you agreed to care for her. You must remember that, while your decision to care for your mother was good and noble, you also had the power to say no, and no one coerced you into a full-time carer position.

No matter what, do not let money split you from your family. Hell, we're really only taking about thousands of dollars, not millions; even if you were to get a larger portion, it's not going to last long. But your life will, and you will want to have a relationship with your family for your whole life. Breaking with any one of them over money just isn't worth it.
posted by vignettist at 10:36 PM on September 16, 2015

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