Wills & power of attorney case

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In a recent case the Supreme Court ordered a son who had power of attorney for his elderly father to reconvey the family home and money which the son had transferred to himself to the exclusion of his 3 brothers and sisters. All children were named in the will of the deceased.

The son resided in the property of his father who was living in a nursing home and suffering from dementia. The son had a transfer prepared transferring the family home to himself before his father died. The son signed the transfer for his father under the power of attorney and also signed for himself. He also withdrew from the father's bank account substantial amounts over time . By signing the transfer of the property from his father to himself for a nominal amount the son sought to exclude the family home from the deceased estate with the result that his brothers and sisters would only receive ¼ share in the small remaining savings of the father. These savings had been depleted prior to the father's death by the son operating the bank account for his own benefit.

The brothers and sister successfully challenged the son's actions and commenced litigation over the deceased estate and the terms of the will. The Court ordered the son to reconvey the property to the estate of the father and repay the money with interest even though the power of attorney was valid. The court applied the legal principals of equity to find that the son held the property and the money on trust for the estate and that all the deceased's children were to receive an equal share of all of the father's property.

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