8.5 Most Australians have a will or expect to make one. While most younger people do not have a will, 93% of people over 70 years of age did, and the likelihood of making a will increased with age and the amount of assets.
8.6 Pressure to make or change wills may reflect a range of issues. One clearly goes to control over finances and property and seeking to shore up testamentary benefit. A number of guidelines on elder abuse in Australia include the use of pressure to make or change a will as an example of financial abuse. For example, the Department of Family & Community Services (NSW) published an interagency policy that included the following definition of financial abuse:
Financial abuse is the illegal or improper use of an older person’s property or finances. This includes misuse of a power of attorney, forcing or coercing an older person to change their will, taking control of a person’s finances against their wishes and denying them access to their own money.
8.7 The Financial Ombudsman Service Australia provided an extensive list of examples of financial abuse of vulnerable older people and included ‘[g]etting an older person to sign a will, deed, contract or power of attorney through deception, coercion or undue influence’.
8.8 Although there is no deprivation to the older person through a change in their will, if the pressure to change a will occurs within a relationship of trust and causes ‘harm or distress’ to the older person, such action fits within the World Health Organization description of elder abuse.
8.9 If descriptions or definitions of elder abuse are narrower, for example defining abuse in terms of ‘harm’ or ‘risk of harm’, and not including the element of ‘distress’, there may be arguments about whether to include pressure to change a will as ‘elder abuse’. Whether or not pressure to change a will is identified and tracked within the data collection on elder abuse is a matter that will need to be considered as part of prevalence studies.
8.10 State Trustees Victoria urged that concepts like ‘harm’ ‘should not be viewed narrowly’:
Unauthorised interference with an older person’s estate planning arrangements (such as their will), even if there is no direct loss to the older person, is harm to that person’s ‘legacy’, and represents an infringement of their rights. For example, if a child of an older person exercises undue influence in getting the older person to change their will in the child’s favour, and the older person dies soon afterwards, the older person may suffer no direct financial or other loss from the child’s actions, but the older person’s intended legacy will be harmed, as their actual testamentary intentions will not be able to be fulfilled.
8.11 Stakeholders provided a number of examples where controlling conduct exerted over an older person included pressure to change a will. Some were personal stories; others were case studies or examples provided by advocacy groups and other non-government bodies. The Queensland Law Society submission, for example, included the following case study:
In 2013 V, in her 70s, was brought to our office by her ‘partner’ to make a new Will. The partner was adamant that he wanted to be present for the meeting and was very keen to tell the writer what V ‘wanted’. After insisting that we could not see V with him present he reluctantly waited in our reception area. Within a very short time frame it became apparent that V would not have the capacity to make a Will, did not know why she had been brought to the appointment, did not know her date of birth, had no idea about her assets and although she could name her family members (children) had no idea about their ages, relationship status or their children’s name and ages. V also kept changing her mind about what it was that she wanted to do (when she could remain focused on the discussion).
8.12 An additional reason for seeking to lock in testamentary benefit through changes to a will may be the possibility of an enlarged estate through unspent funds under ‘consumer directed care’ arrangements. Aged and Community Services Australia (ACSA) reported concerns of some aged care providers about the ‘rising risk of financial abuse for vulnerable older Australians and an unintended consequence of consumer directed care that is now becoming more evident’:
A risk that will need to be managed is the change from February 2017 requiring unspent funds contributed by older people to be returned back to them or their estate, as it may also provide motivation for some family members to limit home care package spending.
Ensuring that there is a requirement for regular and timely planned reviews of a Home Care Package by the provider, even when a family member or representative is self-managing the package, would allow some level of external oversight to minimise the risk of abuse going unobserved.
Tilse et al, above n 1, 8. This finding was based on a national survey of the prevalence of wills in Australia, in-depth interviews with non will makers over 45 years who have decided not to make a will and interviews with other targeted groups who have a will: Cheryl Tilse et al, ‘Will-Making Prevalence and Patterns in Australia: Keeping It in the Family’ (2015) 50(3) Australian Journal of Social Issues 319.
Department of Family and Community Services (NSW), Preventing and Responding to Abuse of Older People: NSW Interagency Policy (2014).
Financial Ombudsman Service Australia, Banking & Finance—Bulletin 56, (December 2007) 6.
World Health Organization, The Toronto Declaration on the Global Prevention of Elder Abuse (2002) ch 1. See ch 2.
See ch 3.
State Trustees Victoria, Submission 138.
See, eg, Name Withheld, Submission 279; Name Withheld, Submission 181; Name Withheld, Submission 144; Name Withheld, Submission 25. A number of confidential submissions also included changes to wills in the examples of financial abuse.
See, eg, Association of Financial Advisers, Submission 175; Caxton Legal Centre, Submission 174; Seniors Rights Victoria, Submission 171; ARAS, Submission 166; University of Newcastle Legal Centre, Submission 44. See also Carroll & O’Dea, Submission 335.
Queensland Law Society, Submission 159.
Aged and Community Services Australia, Submission 102.