Inheritance Question

This is a hypothetical question that is a spin off of the I Hate My Mother topic.

Someone suggested that the mother could be declared incompetent and her funds be used in a way that takes care of her medical and living needs instead of being squandered and leaving her destitute.

It made me wonder, let’s say Evil Mom never intended to leave anything to her offspring, and was instead going to leave her megabucks to the local clown college. If her child(ren) were able to have her declared incompetent and made her conservators, could they invalidate and rewrite her will (made when she was competent) to benefit themselves?

IANAL, but believe based on conversations with one that if she wrote her will before she became incompetent, she can do what she wants to with her money.

It’s her money and she can do with it what she likes.

Did you even read the question?


If she was competent at the wills signing, as attested to by the witnesses, then isn’t it a legal binding contract that comes into play at her death? The only questions are 1) was she competent at that time she signed and 2) what funds are left at the time she passes.

Also, conservators can be audited and/or required by a court to show where the money went by the beneficiaries (clown college), but usually through years of court/attorney fees so hefty that she could have left it all to a law school instead and saved everyone the trouble.

Invoking the Miley Cyrus Doctrine?

On a serious note, I think this is one of those legal issues that varies by jurisdiction. I believe some places require that children receive a certain minimum amount of their parent’s estate.

I’m certain they could not rewrite the will, but if the offspring could prove that the mother was mentally incompetent, it could be set aside.

At which point, I presume one of two things would happen: An earlier will would prevail (the most recent one written before she became incompetent), or it would be as if she had never written one at all.

In that case, the local state’s laws for intestate (intestacy?) would prevail. Most likely, some variant of the husband gets it all (if there is one), the kids split it evenly, or husband and kids split it according to some legal formula.

So yes I read the question but it asks two questions.

The money would be placed into trust in Australia for the care of the mother, this may or may not be have the kids in charge (but probably would be the State Trustee). There are very strict rules here on how that money is spent.

The will would be invoked when she passes.

Watched Mommie Dearest recently, didn’ja?

I do not believe one can rewrite a will if it was made while the person was mentally competent. In addition, a person can leave an inheritance to anyone they wish. There are many adult children who do not give a hoot about their elderly parents, rarely visit them if they live in the area, never offer a helping hand, so why should the elderly parents leave these self-centered adult children money? I read somewhere many years ago, that if you have children, do not expect them to be there for you when you become elderly. Fortunately, there are some adult children of aging parents who care very much about their elderly parents and do help out, and I have the utmost respect for them.

Surprise of surpises, those are the types of offspring who dispute wills most often. (Been there, done that…)


In my jurisdiction an attorney (or guardian, or trustee etc) cannot make a will for the principal. It is possible that an application can be made to the Supreme Court for a will t be made, but it is generally a complex application with a high threshold.

I would be very surprised if there were a jurisdiction in which this very serious personal power can be exercised by an attorney etc.