The Intellectual Disability
Rights Service often receives requests for advice from
people with intellectual disabilities, their families,
friends, service providers and advocates concerning the
rights of people with intellectual disabilities who have
been unfairly treated in a parent’s (or other family
member’s) will; or have failed to receive property
left to them in a will.
The following is a brief summary of
some of the issues to be considered. This summary is
based on the laws of New South Wales but the general
principles are applicable in other states.
Q: How can you find
out whether a person has been left anything in a
will?
If you suspect that a person
has been treated unfairly in a will or has not received
his or her entitlement under a will, you should first
discuss the issue with the person to find out:
• does she or he know
anything about the will?
• does she or he want to
know more about his/her rights under the
will?
• is it ok to discuss the
matter with other family members who may know more
about the will?
If the person wants to know more
about the will and agrees to having the matter discussed
with family members, ask the family for a copy of the
will. If the family refuses or if the person with the
disability does not want the family to know about his or
her concerns, a copy of the will can be obtained from the
Supreme Court (as most wills have to be approved by the
Supreme Court before they can be carried out by the
executors).
Your local community legal centre
or the Registrar of the Probate Division of the Supreme
Court may be able to assist.
Try to find out as much information
as you can about the deceased including his or her full
name, last address, date of death and the date on which
probate was granted. The more information you can get,
the easier it is to locate a copy of the will. Another
way of finding out who is handling the deceased’s
estate is to keep an eye on the legal notices section of
the paper.
If a person does not have the
capacity to make an informed decision about whether to
pursue the matter, an application may be made to the
Guardianship Tribunal for a guardian or financial manager
to be appointed.
Before doing this, consideration
should be given to discussing the matter with any family
members who may have information about the will in an
attempt to resolve the matter informally. It may also be
appropriate to seek legal advice on the desirability of
settling the matter or taking it further.
Once you obtain a copy of the will,
you can contact a solicitor, your local community legal
centre or NSW Legal Aid for assistance in interpreting
the will.
Q: What if no or
unfair provision is made in a will?
Everyone, whether they have a
disability or not, can ask the court to alter a will if
they believe that inadequate provision is made for them
in another’s will. The Family Provision Act 1982
gives a court the power to ‘rewrite’ a will
where the willmaker has not adequately provided for
family members.
Q: Who can apply to
have a court 'rewrite' a will?
Under the Act there are four
categories of people who can challenge a will. These
are:
- a spouse (including a defacto
spouse) of the willmaker;
- a child of the willmaker;
- a former spouse of the
willmaker;
- and certain other people who
were dependent on the willmaker at some
time.
Q: What factors will
the court consider?
In order for a court to alter
a will the court must be satisfied that the willmaker
made inadequate provision for the “proper
maintenance, education and advancement in life” of
the person making the application.
Whether the provision made is
“adequate” or “proper” will depend on
all the circumstances of the case.
For this reason the court will
consider a wide range of factors such as: the wealth of
the willmaker; the number and needs of other dependents
and beneficiaries; the age and capacity of the applicant;
and the relationship between the applicant and the
willmaker.
If the court is satisfied that the
provision made in the will for the applicant was not
adequate and proper, the court will then have to decide
what, if any, provision should be made for the
applicant.
Again the court will consider a
wide range of factors. If the applicant is a person with
an intellectual disability the court may consider issues
such as the availability of social security benefits and
the extent to which the person’s disability inhibits
his or her ability to gain employment.
Q: How is an
application made?
An application under the Act
is made to the Supreme Court. Legal Aid may be available
for such applications depending on how much money the
applicant has and the likelihood of success of the
application. Legal costs are usually paid from the
estate.
Q: When can an
application be made?
An application must be made
within 18 months of the death of the willmaker. The court
has the power to extend this time but will do so only if
sufficient cause is shown. In considering whether to
allow an application to be made out of time, the court
will consider a number of factors such as the reason the
claim was not made earlier; prejudice to other parties if
the time is extended; whether any party acted in an
unfair way; if time is extended, the likelihood of
success of the application.
Anne and Michael
were the only children of Mr and Mrs Smith. Mrs Smith
died many years ago. Mr Smith recently died and in his
will he left everything to Michael.
Anne has an
intellectual disability and receives the Disability
Support Pension (DSP). Before their father’s death,
Anne and Michael lived at home with their father. Michael
now wishes to marry and he and his new wife want a place
of their own. He wants to sell the family home and buy a
new home.
Michael proposes
that Anne move into a hostel for people with
disabilities, the rent for which she can afford on the
DSP. Anne does not want to upset her relationship with
Michael but she is very unhappy about this as she would
like to live in a unit near where she has always lived so
that she can remain close to her friends.
Anne along with
her friend Margaret visit the local community legal
centre and the solicitor there explains that Anne has the
right to challenge her father’s will on the grounds
that it is unfair. The solicitor suggests that Anne, with
support from Margaret, explain to Michael her concerns
and her right to challenge the will if an agreement can
not be reached. Michael agrees to split the proceeds of
the sale of the house with Anne so that she can purchase
her own unit.
It is important that applications
be pursued promptly. A person who has questions about
this can contact their local community legal centre or
NSW Legal Aid for advice.
Q: What if the terms
of the will are fair but are not being carried out or what
if a trust has been created but the trustee is acting
unfairly?
In some cases that have been
referred to our Service, the willmaker attempted to make
an adequate provision in the will for the person with the
disability but the person has received none or only a
small part of the money or other property left to him or
her. This can happen for a number of reasons
including:
• problems with trustees who
may be overly cautious in maintaining the trust fund; may
not be aware of the person’s needs; or may be
reluctant to agree to innovative uses of the money which
could significantly enhance the person’s
life;
• lack of communication
between service providers and the trustee (the trustee
may not be aware of the potential benefits which the
person could receive if more money was made available
unless the service provider asks for the money but the
service provider might not ask if they do not know that
money is available); or
• fraud or financial
exploitation.
Q: What is a
trust?
One way parents often try to
provide for their son or daughter with a disability is to
leave the person’s share of the estate in a
trust.
This means appointing people,
called trustees, to manage and use the fund for the
person with a disability in the way specified in the
will. Parents can also say what happens to any unspent
part of the fund when the person with a disability
dies.
The Intellectual Disability Rights
Service has dealt with cases where trustees have been
unwilling to meet very reasonable requests for money.
This has arisen from factors such as trustees mistakenly
thinking that a person’s disability will prevent the
person from appreciating a holiday, ordinary furniture
and even decent clothes and shoes.
In some cases, trustees are
reluctant to spend money on the person with the
disability because it conflicts with their own personal
interests.
For example if a family member is
appointed as a trustee and the will provides that the
trustee will receive any unspent part of the fund when
the person with a disability dies, the trustee may find
it difficult if not impossible to act solely in the best
interests of the person with a disability.
Q: What can be done
if you think trustees are acting unfairly or
improperly?
Under the law, trustees must
act in accordance with the terms of the trust; act only
in the best interests of the beneficiaries of the trust;
invest wisely; not make any unauthorised profit; keep
accounts and give the beneficiaries complete and truthful
accounts.
If a beneficiary has any concerns
about the way the trustees are acting, the person should
demand that the trustees provide
an“accounting.” An accounting is a statement
prepared by the trustees showing how much property was
originally put into the trust, how that money was
invested or distributed, how much income the trust has
earned and how that income has been used.
If trustees can not account for
moneys they have held on trust or if they have used the
money for improper purposes, then they may be legally
required to repay any such money to the beneficiaries. It
is possible to apply to the court for a new trustee to be
appointed.
If a trustee fails to do these
things, legal advice should be sought as it may be
necessary to apply to the court to remedy the
problem.
Q: Where can further
information be obtained?
• Questions of
Rights: A guide to the law and rights of people with an
intellectual disability, 2nd edition. Available from
the Intellectual Disability Rights Service. This book
covers many of the rights problems faced by people with
an intellectual disability in NSW and includes sections
on guardianship and on wills.
• When I’m gone -
this book aims to provide parents with the range of
options available to them on wills and estate planning so
that they are better placed to fully and properly
instruct a solicitor in drafting their wills. Published
in early 1999 by the Intellectual Disability Rights
Service.
• Community Legal
Centres - for information about the legal centre
closest to you phone the Combined Community Legal Centres
Group 02 9318 2355
• Law Access 1300 888
529
John’s
parents died many years ago. In their will they said that
everything they owned should go into a trust fund for
John. They appointed John’s uncle Pat as the trustee
and instructed him to use the money for John’s
maintenance and support. They also said that when John
died any money left in the trust would go to uncle
Pat’s children.
John has
received very little money from the trust fund. The staff
in the group home where John lives are very concerned
about this as Pat has consistently refused to give John
any money claiming that John would not appreciate
anything they purchased. John has told them that he would
like to take a holiday and get his own
television.
John with the
help of the staff writes to Pat asking for an explanation
of how much money was left to John by his parents, where
the money has been invested and how much has been spent
on John. Pat supplies the information requested and a
meeting with Pat is arranged. Pat agrees to provide money
from the trust fund for John to go on the holiday and
purchase the television. John and Pat agree that they
will have a meeting every few months to discuss what John
wants or needs.
For further
information
Legal Advice available between 2pm
- 5pm weekdays
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