State Trustees bring an action against former nurse over her entitlement to her patient’s $1.5 million estate
In 2015, Lionel Cox, a 92 year old patient at a residential aged care facility, passed away leaving a nurse, Abha Kumar (Kumar), his $1.5 million estate in his Will (the Will). On 24 September 2019, the Victorian Civil and Administrative Tribunal (VCAT) handed down a five year disqualification to Kumar after finding that she was “overly involved” in Mr Cox’s affairs, which included the making of the Will that left his estate to Kumar. Despite this, Kumar was entitled to retain the $1.5 million estate because the Tribunal did not have jurisdiction in relation to matters concerning Mr Cox’s estate.
Read more about that case in a previous alert.
There have now been further developments as Kumar faces a legal challenge to the $1.5 million inheritance. On 8 August 2021, Kumar was served with a summons for revocation in a Supreme Court action brought by State Trustees. The outcome of this application could see the grant of probate of the final Will revoked and ultimately strip Kumar of the $1.5 million inheritance.
State Trustees claim that because Mr Cox’s Will was not signed in the presence of both witnesses, it was not executed in compliance with Section 7(1) of the Wills Act 1997 (VIC). Section 7 provides a set of strict formalities for a Will to be considered valid. Further, it is alleged that Kumar had folded the document in half and placed her hand over the document so that the witnesses could not see the contents of the Will.
State Trustees contend that the provision in Mr Cox’s Will to give his entire estate to Kumar who he had known for only 24 days before making the will, would not be consistent with his natural affections and moral duties.
If State Trustees is successful in their revocation proceeding, the Court will order that the final Will was not validly made and Mr Cox’s estate will be distributed based on his penultimate will. However, if Mr Cox did not have any penultimate Wills, then his estate will be distributed pursuant to the statutory scheme of intestacy. His estate may pass to his next of kin or ultimately, to the State, if he did not have any next of kin.
Cases like this highlight the risk of elder abuse and the need for greater protection for Australia’s vulnerable aging population. Further, it highlights the implications of home-made Wills using Will-kits.
The benefits of having a Will prepared by an experienced estate planning lawyer are:
- They will ensure that the instructions that they receive from the will maker are independent and free from any undue influence;
- They will check for signs of incapacity of the will maker to ensure that they are capable of making sound decisions with respect to their estate;
- They will provide their client with advice in relation to the will maker’s instructions for persons to be named as executors and beneficiaries in the will, as well as advise on the legal implications of excluding certain people; and
- They will ensure that the will is compliant with the legislative requirements.
How we can help
If you are concerned about a loved one being in a vulnerable position or your own affairs not being in order, we will work closely with you to address your needs. By having a properly drafted and well-considered Will, you can avoid your estate being embroiled in such costly and stressful litigation.
If we can help in any way during this challenging period, please contact Ilana Kacev and Clare Hesbrook in our Estate Planning team for further advice.