VIC Beneficiary rights after 55 years

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Lynduc

Member
9 September 2017
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I’m an author with a plot problem. Kaye dies in NSW in 1962. Her only living relative is a brother who dies the same time. He has 3 kids. Kaye’s will has gone astray in a solicitor's office in Beechworth and no one knows it exists. Her estate is willed to only the 1st of the 3 kids. The State Trustee distributes the estate, perhaps in trust until they reach 21? The missing will is found after 55 years but the sister-in-law has only given the money to the other 2 kids. Does the 1st child have any claim on the original estate?
 

Tim W

Lawyer
LawConnect (LawTap) Verified
28 April 2014
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If you are indeed writing a work of fiction, then say whatever you like.
Nobody expects you to get the black-letter law 100% correct in a novel.
 

Lynduc

Member
9 September 2017
4
0
1
If you are indeed writing a work of fiction, then say whatever you like.
Nobody expects you to get the black-letter law 100% correct in a novel.
Ahhh, but that's the thing - people will jump down your throat if they find an error. I never write fiction without researching first. I am for 101% correct!
 

winston wolf

Well-Known Member
21 April 2014
424
115
894
Adelaide
changefpa.com.au
Have a look at this http://www3.austlii.edu.au/au/journals/UNSWLawJl/2005/43.html
Check link number 37.
Possibly if there was a trust the estate could be deemed to have not been fully distributed(could be wrong) and a judge could allow a family provision claim under 1960's law.
I dont know if the act in use in the 60's allowed extension at the courts discretion? They do now.
BTW the experts can't figure estate law to 50% so you have wriggle room.
 

Lynduc

Member
9 September 2017
4
0
1
Have a look at this http://www3.austlii.edu.au/au/journals/UNSWLawJl/2005/43.html
Check link number 37.
Possibly if there was a trust the estate could be deemed to have not been fully distributed(could be wrong) and a judge could allow a family provision claim under 1960's law.
I dont know if the act in use in the 60's allowed extension at the courts discretion? They do now.
BTW the experts can't figure estate law to 50% so you have wriggle room.
Thanks for that, Winston.
I had a look at the link and have thought about your comment re having some wriggle room. That's comforting.
In my scenario, if the 1st child (now 62) waves the will at her 2 siblings in 2017 asking where's her share, how do you imagine she could recover that after all those years? Would they have to compensate her? Is it feasible in your opinion?
 

winston wolf

Well-Known Member
21 April 2014
424
115
894
Adelaide
changefpa.com.au
I dont know what was in the Act in the 60's.
This is not a black and white thing like did Jo Blow steal the vase.
It's all about timing and size of the estate and duty and good and proper actions bla bla bla.
Unlikely to successfully recover any funds and of course they would counter with a family provision claim.
If you want a thick book have a family provision claim. Tears and recrimination abound, digging up dirt and old hurt is stock and trade of family provision claims.
 

Lynduc

Member
9 September 2017
4
0
1
I dont know what was in the Act in the 60's.
This is not a black and white thing like did Jo Blow steal the vase.
It's all about timing and size of the estate and duty and good and proper actions bla bla bla.
Unlikely to successfully recover any funds and of course they would counter with a family provision claim.
If you want a thick book have a family provision claim. Tears and recrimination abound, digging up dirt and old hurt is stock and trade of family provision claims.
Winston, I can't thank you enough. I know how to continue the writing now.
What a terrific resource is this website and your expertise, of course!