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NSW Brothers Manipulated Mother's Will - What to Do?

Discussion in 'Wills and Estate Planning Law Forum' started by Carol nine28, 24 November 2015.

  1. Carol nine28

    Carol nine28 Member

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    My father resided in NSW and passed away 8 years ago. He had a joint will together with my mother leaving all his estate to my mother and then on to the three children and vice versa. It was common knowledge in our family that both had agreed not to revoke their respective wills (albeit not stated in the will).

    The assets of the estate included the family home an NSW property valued at $1.5 million of which he was joint owner together with my mother plus cash of about $280,000. No probate was issued just a letter of administration as the property was put solely into my mother’s name.

    Just recently I discovered that despite my father's wish that all children be treated equally as their needs are essentially the same, my mother had gifted about $240,000 from my father's estate solely to my two brothers about 7 years ago and have been deceiving me that the $280,000 was to be held in trust until she passed away. My brothers have been manipulating my mother spreading false and misleading information about me. She is 94 years old and losing her proper cognitive functioning.

    I recently discovered a new will prepared for her by my brother, signed by her that stated she has left the house (now valued at $2.5 million) solely to him just before she goes into an aged care facility. I suspect a dodgy deal has been done between my brothers to exclude me from the will. Effectively I would be left with nothing if this should occur.

    My brothers are avoiding me and My Mother refuses to discuss the matter with me. My brothers and I all have their own homes of similar value. I have no children no money or earning capacity at 55 years old. I am on the disability support pension and think my only option is to lodge an NSW caveat on the property to prevent it being gifted to my brother and leaving no assets in the estate to challenge if my mother survives the notional estate period of 3 years. The grounds for the caveat would be as a beneficiary of a constructive trust and improvements I have made to the property over the years.

    I would greatly appreciate any thoughts of what I should do.
     
  2. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi Carol

    We need to start with fully understanding the joint/mutual Will made by your parents when they were both still alive.

    Was a Solicitor involved?

    What were their instructions to the Solicitor?

    Was it to create an irrevocable mutual Will? (this was the understanding of the family - where did this understanding come from?)...

    Why was a Joint Will (which is typically not irrevocable) used instead of a Mutual Will (which is irrevocable)?

    It is possible for a Joint Will, to also be a Mutual Will..... we need to understand if this is the case?

    Have you had legal advice regarding the Joint Will?

    Do you have any reports regarding her mental capacity.. at 94 does she understand the effect of her re-writing the Will? or gifting the Property?

    Which one is it? Is your Mother re-writing the Will, or gifting the Property?

    If it is a new Will, you would most likely have a right to lodge a Family Provision Claim (on the basis that the new Will has not adequately provided for you)...

    If it is a gift... we would need to establish whether you have a caveatable interest in the Property... this would require legal analysis, regarding whether a constructive trust has actually been created?

    Lodging a Caveat without sufficient grounds is a legal ground to be sued yourself.... so legal advice prior to lodging is extremely important.

    Kind regards
     
    Louise4007 likes this.
  3. Carol nine28

    Carol nine28 Member

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    Hi James,

    Thank you very much for the response. Concerning the questions you have raised, I respond as follows:

    Was a Solicitor involved? – Yes, the will was constructed in 1988 by a Solicitor (family friend) in exchange for work my father did on that solicitor’s property.

    What were their instructions to the Solicitor?
    - My parents instructed the Solicitor that the will be drawn up in order that either surviving partner leaves their estate equally to all three children and that this could not be changed in future by either partner. The parents openly advised all the family of this arrangement at the time and prior to my father's passing,

    Was it to create an irrevocable mutual Will? – (this was the understanding of the family - where did this understanding come from?)... Yes, this was the intention as my parents who both openly stated that they wanted all 3 children to be treated equally in order that there not be any family dispute irrespective of which parent died first.

    Both parents agreed to this and had the will drawn up on this basis, however, there is no irrevocable clause in their will.

    Why was a Joint Will (which is typically not irrevocable) used instead of a Mutual Will (which is irrevocable)? - This was the Solicitors advice in 1988, my parents never updated their will, however, my father did sign a letter of wishes 3 months before he passed away from terminal lung cancer. In that letter, he advised what he would like to be done with his personal effects and re-confirmed that all his assets would not be diminished and held in trust equally for all three children by my mother until she passed away and as per the intent of their current will. The letter of wishes was witnessed by an independent person and his personal effects distributed accordingly to those wishes.

    It is possible for a Joint Will, to also be a Mutual Will..... we need to understand if this is the case?

    Unsure on this as there was no irrevocable clause in their will.

    Have you had legal advice regarding the Joint Will? - No, as my mother has destroyed the earlier wills that I have viewed.


    Do you have any reports regarding her mental capacity.. at 94 does she understand the effect of her re-writing the Will? or gifting the Property? – No medical reports and she is very stubborn and argumentive in order to get her own way and she is not thinking things through just doing as she wants. Unable to reason with her.

    Which one is it? Is your Mother re-writing the Will, or gifting the Property?

    I have viewed all wills. The will was completed by the solicitor ( different solicitor from first will) handling my father's estate 8 years ago was made out exactly the same as the earlier will except my fathers name was removed. A homemade new will was created by the brother a few months ago leaving the property solely to him and other assets ($100,000) to my other brother and $10,000 for myself( these monies being available after aged care costs are deducted). I also found notes hand written by my mother explaining her intention to gift the family property solely to my brother just before she goes into aged care. (very soon). I have also been removed as executor of the estate.

    If it is a new Will, you would most likely have a right to lodge a Family Provision Claim (on the basis that the new Will has not adequately provided for you)...

    Yes, but the latest will may be invalid as it is homemade, do I understand that I could possibly commence a family provision claim whilst my mother is still alive due to circumstances of fraud of my fathers estate by my mother as executor in not adequately providing for me in the latest will?

    If it is a gift... we would need to establish whether you have a caveatable interest in the Property... this would require legal analysis, regarding whether a constructive trust has actually been created?

    My understanding is that my father passed away knowing that my mother would hold his estate for the benefit of his 3 children until she passed away and my mother agreed to that arrangement but has since changed her mind albeit manipulated by my brother and my father is not alive to be able to change his mind and that this caused a constructive trust.

    As I paid for the construction of a large extension for my parents property 30 years ago when I was in a better financial position on the understanding that I would one day be inheriting a share in the property I feel I have an interest in that property to support the lodging of a caveat aside from being a beneficiary of an equitable interest.

    Lodging a Caveat without sufficient grounds is a legal ground to be sued yourself.... so legal advice prior to lodging is extremely important.

    I agree that lodging a caveat without sufficient grounds can be risky, but I have considered that I have a lot to lose at least $800,000. If my brother gets gifted the property and then on-sells it (highly likely) then quickly disposes of all the money there is no family provision claim as all the assets of the estate have been dispersed. Game over I lose everything.

    As it is cheap to lodge a caveat, I intended to lodge a caveat as a bargaining tool to force discussion and hopefully form some sort of family agreement. I could always withdraw the caveat if things do not work out, after all my mother cannot claim the property is up for sale it is only being gifted. At worst I feel I would only be liable for legal costs if it is found that I have no equitable interest in the property with my mother being free to gift the property solely to my brother to sell straight away and dispose of the assets to avoid any future family provision claim. What other choice do I have, fight or walk away with zero?

    Kind regards
     
  4. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi Carol

    Step 1

    My current thinking is that one of the following 4 scenarios have occurred:

    1) the 1988 Will contains an irrevocable clause (you just couldn't recognise it); or

    2) the Solicitor who prepared the 1988 Will was negligent, and failed to follow your parent's clear instructions; or

    3) your parents were mistaken, and thought a Joint Will automatically was irrevocable and did not require a special clause... and if so, the Solicitor may still have been negligent in failing to explain what a Joint Will actually did; or

    4) your parents failed to provide clear instructions to the Solicitor regarding what they wanted to happen.

    I think that you need to obtain a copy of the 1988 Will, which I assume will be in the Solicitor's archives... and have a legal right to do so via the Executor of the estate... (am I right to assume you were named as an Executor?)

    Who was named in the Joint Will as the Executor of your Father's estate? the Solicitor? or your Mother? or someone else? or yourself, and the other brothers?

    The next thing that would shed light on the whole situation above, is the matter file held by the Solicitor which would include their instructions regarding the 1988 Joint Will.... this may be subject to lawyer/client confidentiality... we can come back to this.... after obtaining a copy of the Will, in the first instance.

    If you are an Executor of the estate, then it is highly likely you can request a copy of this matter file.

    Step 2

    The Letter of Wishes is non-binding... do you have a copy? if not, it would be good to obtain one from the Executor... (or if you are an Executor to request a copy from the Lawyer) in fact it may be attached to the 1988 Joint Will... and obtained at the same time.

    Step 3

    Obtain a copy of the Will (if possible) made by the Solicitor handling you Father's estate (8 years ago), where your father's name was removed. Or is this in reality, your Mother's updated Will, and if so, you might not be able to obtain a copy until she passes away. Were these Solicitor's acting for you at the time? or your Mother exclusively?

    Step 4

    Do you have any evidence of an agreement as to what would happen, regarding your payment for the construction of a large extension for my parents property 30 years ago? or was it verbal?

    Step 5

    Considering - preparing and lodging the Caveat... versus any other legal alternatives.

    For example, an application to the Court for an injunction and compensation due to breach of Trust by the Trustee (your Mother), etc.

    Is the 1988 solicitor still practising law? is the law firm still operating? does the statute of limitations preclude any legal action against the Solicitor?

    If you decide to lodge a Caveat, it is important that you fully understand the implications of lodging the Caveat, and that it is worded correctly...

    I understand that there may not be very much time, as your Mother had indicated the intent to gift the property before she moves into aged care... which you have indicated is very soon.

    Kind regards
     
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  5. Carol nine28

    Carol nine28 Member

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    Hi James,

    Thank you for your response. I respond as follows;


    1) The 1988 Will contains an irrevocable clause (you just couldn't recognise it); or

    Yes, that is possible, however, I did not see any clause that specifically states an agreement that each party cannot revoke the will.

    2) the Solicitor who prepared the 1988 Will was negligent, and failed to follow your parent's clear instructions; or

    Yes, it’s possible the Solicitor was negligent as my parents clearly and openly advised the family “that their will can’t be changed no matter who dies first as they always want their children all treated equally.”

    3) your parents were mistaken, and thought a Joint Will automatically was irrevocable and did not require a special clause... and if so, the Solicitor may still have been negligent in failing to explain what a Joint Will actually did; or

    My father and mother certainly believed the Will was irrevocable.

    4) your parents failed to provide clear instructions to the Solicitor regarding what they wanted to happen.

    There is no logical reason why my parents would advise all the family of the clear intentions of their Will and then fail to advise the Solicitor preparing the will or vice versa.

    I think that you need to obtain a copy of the 1988 Will, which I assume will be in the Solicitor's archives... and have a legal right to do so via the Executor of the estate... (am I right to assume you were named as an Executor?)

    In order that I obtain a copy of the 1988 Will, could you please tell me how long a solicitor is required to hold a copy of the will? Is the solicitor who attended to my father’s estate 8 years ago required to hold a copy of the will even if estate matters were finalised 7 years ago?

    Who was named in the Joint Will as the Executor of your Father's estate? the Solicitor? or your Mother? or someone else? or yourself, and the other brothers?

    No, my mother was named as sole executor of the estate by the 1988 Will. The current Will names my 2 brothers and a neighbour who is interested in purchasing the family property as executors.

    The next thing that would shed light on the whole situation above, is the matter file held by the Solicitor which would include their instructions regarding the 1988 Joint Will.... this may be subject to lawyer/client confidentiality... we can come back to this.... after obtaining a copy of the Will, in the first instance.

    If you are an Executor of the estate, then it is highly likely you can request a copy of this matter file.


    No, I am not an executor

    Step 2

    The Letter of Wishes is non-binding... do you have a copy? if not, it would be good to obtain one from the Executor... (or if you are an Executor to request a copy from the Lawyer) in fact it may be attached to the 1988 Joint Will... and obtained at the same time.

    Yes have a copy of the letter of wishes

    Step 3

    Obtain a copy of the Will (if possible) made by the Solicitor handling you Father's estate (8 years ago), where your father's name was removed. Or is this in reality, your Mother's updated Will, and if so, you might not be able to obtain a copy until she passes away. Were these Solicitor's acting for you at the time? or your Mother exclusively?


    These Solicitors are different from the 1988 Will Solicitors. The Solicitors from 8 years ago were acting exclusively for my father's estate and completed my mothers updated will with the will remaining in effect the same as the previous Will except that my father's name was removed and all three children were named as executors.

    Step 4

    Do you have any evidence of an agreement as to what would happen, regarding your payment for the construction of a large extension for my parents property 30 years ago? or was it verbal?

    There is no written agreement only verbal. However, I obviously had an expectation that one day I would be inheriting part of the estate.

    Step 5

    Considering - preparing and lodging the Caveat... versus any other legal alternatives.

    For example, an application to the Court for an injunction and compensation due to the breach of Trust by the Trustee (your Mother), etc.

    Is the 1988 solicitor still practising law? is the law firm still operating? does the statute of limitations preclude any legal action against the Solicitor?


    Yes, the solicitor is currently practicing as a partner at a different NSW law firm than the 1988 firm he previously worked for.

    If you decide to lodge a Caveat, it is important that you fully understand the implications of lodging the Caveat, and that it is worded correctly...

    For the caveat I propose something along these lines:

    Interest being claimed – an equitable interest in fee simple as a beneficiary under a constructive trust.

    Grounds of claim - As beneficiary of a constructive trust as a result of contributions made by the caveator to the registered owner for improvement of the property.

    Thank you for all your assistance unsure of what to do as it somewhat overwhelming for me dealing with this matter. Any other suggestions would be much appreciated given my limited financial resources.

    Kind regards
     
  6. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi Carol

    Pro Bono (Free) Legal Assistance

    Given your limited financial resources, I recommend you approach a local community legal centre for assistance.

    With regard to retention of files by Solicitor's in Australia

    Australian Solicitor Conduct Rules 2012

    14. CLIENT DOCUMENTS

    14.1 A solicitor with designated responsibility for a client’s matter, must ensure that, upon completion or termination of the law practice’s engagement: 14.1.1 the client or former client; or
    14.1.2 another person authorised by the client or former client, is given any client documents, (or if they are electronic documents copies of those documents), as soon as reasonably possible when requested to do so by the client, unless there is an effective lien.

    14.2 A solicitor or solicitor’s law practice may destroy client documents after a period of 7 years has elapsed since the completion or termination of the engagement, except where there are client instructions or legislation to the contrary.

    The above being said, the details may still be held in archive, and/or may have been provided to the lawyer administering your father's estate, and/or the Executors of your Father's estate. Did the estate go through Probate? If so, the Court records will have a copy of the Will.

    You will need to follow up all of the possibilities.

    Kind regards
     
    Louise4007 likes this.

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