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NSW Aunt Passed Away and Left Me Everything in Her Will

Discussion in 'Wills and Estate Planning Law Forum' started by marcos, 8 November 2014.

  1. marcos

    marcos Active Member

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    My aunty passed away about 20 months ago. She wrote out a will leaving me everything and that her brother lives in the apartment for the rest of his life. Well I have moved him from the housing department and moved him into the apartment. I have been looking after him for years and also have been giving him some money that he has told me that my aunty owed him $6000. Now that the money has finally come to an end, his daughter that he hasn't seen for more then 20 years has come on the scene. They have told me that they are going to contest the will for my uncle to get the apartment.

    Can they do this? How would they go about contesting a will in this situation?

    The other thing is that my uncle has been taken by the police to a mental health house and I have stopped looking after him because of all the things that are happening. What can I do to make these people leave me alone and what can I do about the apartment?

    Thank you
     
  2. winston wolf

    winston wolf Well-Known Member

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    What state are you in?
    What is the exact wording if the will with regard to your uncles tenancy of the house?
    How long ago did you aunt die?
    Did your aunt support you uncle before her death?
    Were you supporting or being supported by your aunt?
     
  3. marcos

    marcos Active Member

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    I am in New South Wales .
    the wording is I direct that my brother , ???????, is to have a life interest in any residential property I own at the time of my death .
    My Aunty pass away 1 year and 8 months ago.
    I was looking after my aunty .
     
  4. marcos

    marcos Active Member

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    my aunty didn't support me or my uncle at all.
    I am 52 years old and my uncle is 8O years old
     
  5. Sarah J

    Sarah J Well-Known Member

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    Hi Marcos,

    Generally, the will-maker has absolute freedom to dispose of their property as they like. Having said that, one can contest a will on the following grounds:

    - the validity of the will based on the assertion that the will maker lacked testamentary capacity when making their will (i.e. the will maker did not really intend to do what they did);
    - the validity of the will based on duress or undue influence or fraud. This is much harder to show and will generally involve some kind of coercion or proving that the will maker believed some fact that significantly influenced their making of the will in this particular way which later turned out to be false;
    - that the will maker failed to adequately provide for your uncle (or your uncle's daughter). This means that the validity of the will is not in dispute but only that the will maker should have provided for your uncle (or your uncle's daughter) and failed to do this. It sounds like your uncle's daughter is attempting this third option.

    Under the will, your uncle has a life interest in the property. This means, your uncle is entitled to possess and live in the property until he passes, at which point, the remainder interest will be vested in you and you can do with the property as you please. But until your uncle passes, you must allow your uncle to live in the property and you generally have no interest except an equitable one to receive the remainder interest in the property.

    Your uncle (or his daughter) can claim that the will did not adequately provide for him if your uncle was maintained by the will maker immediately before the will maker's death. This essentially means that there was some kind of care-taking or financial provision to your uncle that was made on a habitual basis before the will maker's death. The court will then look at whether giving your uncle a life interest in the property (what he received under the will) is sufficient and appropriate, taking into consideration many factors including to what extent the will maker was supporting your uncle, what kind of lifestyle your uncle was encouraged to have, any special needs of your uncle (e.g. mental illness, age), the relationship between the will maker and your uncle.

    If your uncle (or his daughter) succeeds in arguing this, then the court will make an order according to what the court believes your uncle should have received under the will.
     
  6. winston wolf

    winston wolf Well-Known Member

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    Yes you uncle can make a claim for more.
    I doubt your cousin would have any claim.
    He will be making the claim late (you have 12 months) but he can apply for an extension and would probably get it.

    I don't think he would simply get the house if it went to court unless you are very well off indeed.
    You will save a lot of costs if you can come to an agreement.
    If I assume you uncles health is poor and he will die in the next few years.
    Therefore it may be an option to sell the property and create a trust for your uncle. The proceeds would be used for you uncles benefit and then when he dies you get whats left.

    I think your cousin wants him to get the house so she can get the cash when he dies.
    I don't think that would happen but a great amount of money will be spent finding out!
     
  7. marcos

    marcos Active Member

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    .........

    I just wanted to also let you know ..
    My Uncle's daughter has never been to Australia nor has she seen her father for over 25 years.
    I have been giving my uncle $100 a week , I have poof of this , by getting my uncle to sign a book each time I give him money.
    I am the only one that looks after him , cleaning the apartment, taking him shopping , taking him to the doctors for check up and paying his bills etc .

    I believe the major uproar at the moment has sparked from a incident last week.
    My Uncle has Mental Health issues, he has a diagnosis of Delusional Disorder and Paranoid Schizophrenia however he does not take his prescribed medication.
    Last week whilst he was experiencing a disillusion episode he was talking to his daughter (in Spain) on the phone and she advised him to call the police, he did so and they took him to the Hospital, he is now in the Mental health unit.

    I hope he will follow medical advice and take his medication to reduce these episodes and come home, but in the event that he's living situation changes in the future where will I stand when it comes to the apartment, since he has a life interest?
     
  8. winston wolf

    winston wolf Well-Known Member

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    Can you rephrase this, as I think it has been answered?
    Are you living in the apartment?
     
  9. marcos

    marcos Active Member

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    no . but I clear and do the lawn and maintain it. I have been paying the council rates and strata fees for the last 20 months ..
     
  10. winston wolf

    winston wolf Well-Known Member

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    So is you question do you have a claim as a niece, as you have helped him/her?
    Or do you mean does the estate owe you?
    Who is the executor of the estate?
     

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