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VIC Beneficiary Received Nothing When Dad Died - What to Do?

Discussion in 'Wills and Estate Planning Law Forum' started by Tiphino, 29 October 2015.

  1. Tiphino

    Tiphino Member

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    My close family friend, his sister ,and their mother received nothing when the father died. His uncle, the deceased's brother claims he was the Executor of will.

    At time of death, the Deceased, and his brother with a family, jointly owned, and jointly-occupied a dual-occupancy house and farm, worth $M6, up until time of death. Death was in 2009.

    The Uncle and family still reside in that property, with no payments of any kind ever being made to the family of the deceased. The friend's family have never seen a Will. They are also unaware of whether it ever existed.

    The Uncle allegedly claims he was the deceased's Executor of will, but has never presented any Will from which he would have ever been expected to have acted upon. The Uncle has since passed ownership of any and all of his houses, including the affected property, onto his own children, and so has now no property nor significant assets in his own name.

    Deceased and the brother also previously co-owned a Chicken processing factory. That factory was sold, for a claimed $800,000, and again, no proceeds were ever passed onto the family of the deceased. He verbally claims that the business had failed, and that all proceeds of the sale were absorbed into payments to Creditors. He said, again only verbally, that the co-owner brothers were all going to be subject to a joint- bankruptcy, and that he had the deceased agree to become the scapegoat, and accept personal bankruptcy. This was done so that the other brother would still be able to take out loans.

    All this above meant the the deceased was a Bankrupt at the time of death, and so the surviving brother took everything, as he was the only one of the two able to have property in his name.

    The affected person is not sure where to turn, but believes he should be able to make some claim? The affected person thinks the Uncle should be made to answer for his acting out this Executor Fraud? He is also not allowed to enter the property, held by the Uncle's family.

    During all the ensuing years, the Uncle only ever gave verbal reassurances that he was going to give something to these affected people, but has never done so.

    Nothing is known about whatever Taxation affairs have, or should have resulted from the death? Nor whether institutions such as Centrelink, were made aware of the significant 'gifting' activities, of alleged stolen property, for the now-ageing Uncle to his children.

    The above examples of lack of knowledge are all the result of the Uncle never communicating anything meaningful back to the deceased's family. A wall of silence.
     
  2. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi Tiphino

    In order to obtain some picture of the financial position of the father of your close family friend, at the time of his passing, is to contact the Trustee in Bankruptcy, and/or if your friend has no idea as to who that was, to conduct a Bankruptcy Search, seeking a copy of the statement of financial affairs from NPII (made at the time of (what I assume was a voluntary) Bankruptcy.

    Let me know if they need help with this search of the NPII

    National Personal Insolvency Index — Australian Financial Security Authority

    The statement of financial position needs to disclose any transfers of assets made to related parties (for less than market value) prior to the Bankruptcy. Your friend will need to check that all of the transfers or "significant" gifting activities that have been mentioned, were disclosed.

    Please let me know after your friend has completed the above, and can take it from there.

    Kind regards
     
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  3. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Additionally,

    The family members are entitled to make an application to the Court to demand the Executor provide a copy of the Will to the Court, if the Will is not produced to the Court within 6 weeks of the date of death of the testator (s15).

    I recommend searching the Probate Division of the Court, to ensure no Will was provided.. before deciding whether to take any steps to request this to occur.

    Concealment of a Will, with intent to defraud is a misdemeanour (s66).

    ADMINISTRATION AND PROBATE ACT (VIC) 1958

    ADMINISTRATION AND PROBATE ACT 1958 - SECT 15
    Executor etc. neglects to prove, renounce or bring in the will
    The Court shall continue to have power to summon any person named as executor in any will to prove or renounce probate of the will and to do such other things concerning the will as have heretofore been customary and in particular and without limiting the generality or effect of the foregoing provision in any case where the executor named in a will or any person having possession of any will neglects to bring such will into court within six weeks from the death of the testator or where the executor named in a will neglects to prove the same or renounce probate thereof within six weeks from the death of the testator any party interested under such will or in the estate or the State Trustees or any creditor of the testator may apply to the Court for an order calling upon the executor or any person having possession of such will to show cause why he should not bring such will into court or why such executor should not prove the same or renounce probate thereof or in the alternative why administration with such will annexed should not be granted to the applicant and upon proof of service of the summons, if the executor or such person does not appear or show sufficient cause as aforesaid, it shall be lawful for the Court to make an order upon such executor or person to bring such will into court and make such order in the premises and as to costs as appears just and the Court may grantadministration of the estate to such applicant.'

    ADMINISTRATION AND PROBATE ACT 1958 - SECT 66
    Concealment of will a misdemeanour

    (1) Every person who retains or conceals or endeavours to retain or conceal any will or codicil or aids or abets any person in such retention or concealment with intent to defraud any person interested under such will or codicil, shall be guilty of an indictable offence; and shall be liable to a fine of not more than 100 penalty units or to imprisonment for a term of not more than two years or to both fine and imprisonment; and shall also be liable to a proceeding for damages at the suit of the persons defrauded or those claiming under them for any loss sustained by them or any of them in consequence of such retention or concealment.

    (2) No prosecution for any such offence shall be commenced without the sanction of a law officer; and no such sanction shall be given unless such previous notice of the application for leave to prosecute as the law officer directs has been given to the person for whose prosecution such sanction is sought.
     
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  4. Tiphino

    Tiphino Member

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    Thanks for your time and helpful suggestions... Tonight, I passed on your thoughts to our friend.
    He had been contemplating the services of a private investigator, but your given avenues for following up has given him some meaningful direction.

    He added tonight that the Uncle is insisting there was no Will at all, so let's wait and see what gets uncovered...
     

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