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Contesting a Will - Estate Issues for a Named Beneficiary?

Discussion in 'Wills and Estate Planning Law Forum' started by haiqu, 12 June 2014.

  1. haiqu

    haiqu Well-Known Member

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    I am the eldest of four siblings entitled to my father's estate. For identification I'll assign their names in order of age as R, S, T & P (me being R). Siblings S & P are the executors.

    The estate comprised some cash in the bank plus a commercial building, the rent from which provided my father an income stream while he was alive. The will left the whole esatate to R, S & P while T was not entitled to any part due to significant debts to the estate. Needless to say he challenged the will.

    There was also a house, which was put in the name of my father's female friend prior to death. She was also left a sum of $10,000pa from the estate (specifically, from the rent of the building) for the remainder of her life. None of the siblings have any issue with that aspect of the will, although it can complicate resolution since it effectively blocks the sale of the building.

    Before any challenge was made, the cash at bank was distributed, and rent from the building was divided weekly between the three recipients. Once the challenge happened, costs for wills solicitors and accountants mounted and the weekly income was reduced accordingly. It is worthy of note that I am reliant on this income to survive, being both unemployed and homeless. So far I'm managing OK.

    In March 2014 I was informed that because of the challenge, the estate needs to be taxed as a single entity before funds are distributed, adding a further 35% costs onto an already mounting pile. I fear that my income may be reduced to a point where I cannot survive.

    I have attempted to broker several compromise deals to ensure that the situation is resolved in a timely manner, but the executors are dragging this on into a full legal case which may take years to resolve. It is now almost two years since my father's death and we are very far from a resolution.

    After the latest attempt I was told that I should consider applying for unemployment benefits, since my income may dry up entirely. The "reasoning" was that the estate should not have been distributed in the first place. All well and good, but that's water under the bridge. I have also been told that I may be required to repay some funds to the estate in order to cover taxes for the past two years.

    Executor S has stated outright that she would rather spend a fortune on lawyers than see T get a cent. Executor P has physical problems including alcoholism, back injuries and sleep apnoea and has been utterly ineffective in his duties.

    My questions are as follows:
    1. As a named beneficiary, am I entitled to a copy of the accounts? So far this has not occurred.
    2. Do I have a viable case to have the executors removed? In the will, I am the person to whom the job falls should the executors be unable to perform their duties, but in my current circumstances it would probably be best to hand this to a public executor who doesn't have an intimate family involvement, for the sake of impartiality.
    3. Am I entitled to be informed of any court dates so that I may attend? So far this has not occurred.

    Thanks in advance.
     
  2. haiqu

    haiqu Well-Known Member

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    No comments? This is why the current estate laws are batty. It hurts innocent people and costs a fortune.

    Combine that with ambulance chasers who offer "no win, no fees" and you have a recipe for full-blown disaster.
     
    winston wolf likes this.
  3. winston wolf

    winston wolf Well-Known Member

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    Unfortunate you are in the company of probably 50 other across Australia at any given time suffering the same fate. So you have company.

    Regarding you situation, from what you describe you case is progressing as normal.
    The fact that one executor is ineffectual is covered by having the other that is capable even if you disagree.

    The executors often get very weak legal advice and they take away that they have a chance of winning the challenge. When my fathers will was challenged the solicitors would often say "she may even have to pay our costs" I now know this to be a fantasy.

    I don't think you need to pay back any distribution unless you are in NSW and the cash has been deemed notional estate.

    Your questions.
    Q1 As a beneficiary I think you are only "entitled" to a copy of the will and a accounting at the end. (others please add)
    Q2 If you try and get the executors removed this will drive up legal fees further and the only way the executors would be liable for the costs would be if they were operating against there legal advice or were outright stealing.
    Q3 I dont think so (others please add)

    Keep records of every phone call / letter/ email.
    I the solicitors as open to talking with you tell them what you think but dont forget they will charge every time you contact them. Think $50 to read you email + $50 to reply + $50 to tell the executor. Adds up quick!

    Have you done affidavits yet?
     
    haiqu, John R and CathL like this.
  4. CathL

    CathL Well-Known Member

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  5. haiqu

    haiqu Well-Known Member

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    Cathi, I believe you mean to ask in what states the case is likely to be held. My father's home at time of death, and his bank accounts, were in Queensland. The commercial property is in Victoria. Being homeless, I have no "state".
     
  6. haiqu

    haiqu Well-Known Member

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    Winston, Your answers surprise me, especially the last. The estate's solicitors are representing me too, after all.
     
  7. winston wolf

    winston wolf Well-Known Member

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    No, the solicitors represent the estate and the executor is the estates representative.
    If it went to court it would be T versus the executors.
    Beneficiaries are just persons with an interest in the outcome.

    If the executors and the solicitors include you that's great, but they don't have to.

    Like myself most people have little if anything to do with the legal industry until something like this comes along. Then they get a big wake up call.
     
  8. Tim W

    Tim W Lawyer

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    If that's your attitude, is it any wonder
    that people who might be able to help you,
    decide not to?
     
  9. haiqu

    haiqu Well-Known Member

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    Right. So my only option would have been to represent myself, a difficult task given the circumstances.

    I've seen the inside of a few court cases, as a witness. The outcome on average seems to have been fairly random, to the extent that I have little faith in the system.

    In regard to your earlier comment about the claimant maybe even having to bear court costs, I'm not that green. The costs will almost always be awarded from the estate even if the claimant wins a pittance, since that's where the money is.
     
  10. haiqu

    haiqu Well-Known Member

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    Post hoc ergo propter hoc, genius. There was no comment for days before I posted that.

    I take it you're offended by the term "ambulance chaser." While I can see the need for such financial arrangements in cases where someone is genuinely wronged, they are far more often abused by scoundrels on both sides. The law industry is indefensible, and estate laws are nuts.
     

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