When Mark’s Aunty Beth moved into a retirement village, she made a new will and enduring powers of attorney. As she didn’t have any children of her own, she appointed Mark, one of her six nieces and nephews, to be her attorney, because they were especially close. She intended for all her nieces and nephews to benefit from her estate when she passed, but wanted Mark to receive more, given he’d been good to her over the years. Beth decided to leave her share portfolio to all her nephews and nieces, divided between them. Mark would also receive the residue which would include any money in her bank accounts and the money she got back from the sale of her apartment in the village. 

A few years later, Beth had a fall and broke her hip. It wasn’t possible for her to go back to her independent apartment. She spent some time in the hospital part of the village, but her health started to rapidly decline, and the village suggested that she be assessed. The assessment noted a marked cognitive decline, as well as physical. Mark was called in to discuss the next steps.  
The village now had care suites that could be purchased; this would still give Beth a lovely independent room of her own but would also mean that she would get the care that she needed. The cost of the care suite was relatively significant. The village had said that it could be paid for from the sale proceeds of the apartment when it was eventually sold, but because Beth had purchased the apartment when it was relatively cheap, she would still need to pay a top up amount to the village to cover the cost of the care suite. Mark contacted the investment advisors and withdrew enough from the portfolio to purchase the care suite and enough to pay for Beth’s care on an ongoing basis, as the weekly care cost was large and Beth didn’t qualify for the residential care subsidy. When the care suite sold Mark decided to just put them in a term deposit in Beth’s name as the share market was a bit shaky and he thought it was better to go “safe” in the meantime. 
Sadly, a few months later, Beth passed away. Mark went to see her lawyer and found that he was appointed executor of her estate together with the lawyer. He saw that he had been left a sixth of the share portfolio as well as the residue of her estate. Mark explained to the lawyer that there was hardly anything left in the share portfolio as the money had been withdrawn to pay for the care suite and that he had invested the apartment proceeds in the bank. The lawyer told Mark that because Beth had specifically said that her nephews and nieces were to get the share portfolio and he receive the residue, he would now get the lion’s share of her estate.  
Mark was distraught. He had not meant to reduce the amounts that his cousins would receive from Beth’s estate and genuinely thought he had been doing the right thing for Beth. He also had no idea about what was in Beth’s will. He knew at least one of his cousins would be furious about receiving less than she would have if the share portfolio had remained intact, and he braced himself for a will dispute and an investigation into his actions as Beth’s attorney.
This highlights the importance of being transparent when updating your will and involving those affected in the discussion, helping to reduce the risk of misunderstandings and unintended consequences. 

Tammy McLeod, Managing Director, Davenports Law