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QLD Contesting a Will - Fraudulent Claims by Wife?

Discussion in 'Wills and Estate Planning Law Forum' started by SCA, 10 June 2015.

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  1. SCA

    SCA Member

    3 June 2015
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    My father passed away about 3 weeks ago and had changed his will about 2 and a half weeks before he died. The new will has excluded all of his children (including an under 18 year old dependent), and he has given his full estate to his late partner. This is extremely out of character for my father to do. I am still deciding whether it is worth the effort to contest his will as I do not think he has much assets, and his super has said we are ineligible to receive a death benefit has he had made a claim in the past when he was diagnosed with cancer the 1st time.

    I just have quite a few concerns as she has been displaying very suspicious behavior prior to and after his death.

    I have been informed by the Public Trustee (who is the executor) that his will has still has not been administrated. I have been made aware that his estate still belongs to him until administration has been completed and it's not hers as of yet.

    My main concern is that I have been notified by the bank that she has been withdrawing the majority of the funds out of his personal savings bank account since he had passed, and also withdrawing my father's fortnightly pension payment from Centrelink.

    Is what she is doing illegal? Is there an avenue that I can report this? Would there be a consequence for her actions? What happens if I were to contest his will but she's spent all his money?

    Not only is she taking money from a dead person's account when his will has not been administrated, it doesn't look as though Centrelink has been notified of his death as his pension is still being paid into his account. The bank cannot freeze his account until they receive the death certificate, which I will need to go to the births, death and marriages registry to obtain as his partner refuses to provide it to me.

    On another note, as far as I am aware, she has been claiming single parent payment even though they have been a de facto couple for the last 3-4 years and did not report to Centrelink that they were a couple. Am I still able to report this to Cntrelink for both issues (the withdrawing of a deceased person's money and possible fraudulent claim)?

    Regarding my father's personal belongings, she has advised that myself and my brother can have all his personal belongings (e.g. Books, keyboards etc) as a gift. Although I would like to take them as soon as possible because I am afraid she will throw them away or sell them under our noses. I am also concerned that I will get into trouble since the will has not been administrated yet. Am I able to take his belongings that she has offered to give to me as of yet? Or would I need to wait until it has been administrated?

    Or would contesting a will be my best option to ensure that we would be entitled to his personal belongings?

    Also, my parents were technically still married before he died, but were separated for about 5 years, our family home is under my mother's name only and she was the only person making repayments against the mortgage - would this be considered as part of his estate? Would my father's late partner have entitlement to claim the house as part of his estate?

    Thank you for taking the time to read this.
  2. MaWaHa

    MaWaHa Member

    27 June 2015
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    Easy observations

    (1) Probate hasn't yet been granted to the Public Trustee (yet)
    (2) The de facto shouldn't touch any accounts , except to : Pay funeral and other expenses pending ; protect assets from injury. Presumably only the first factor is valid here, and is tolerated by virtue of it being common practice.
    (3) The title to the house is a potential problem (see below )
    (4) Thieving from accounts - Tough biscuits. Providing there are enough assets to cover the thievery, any monies will be recovered via the necessary actions to be taken. You have problems if , in order to recover the monies thieved , you have to sue.


    (1) Contesting the Will - Nope . Contesting the estate - Yes.
    (2) Being not provided for "adequately" , being one your father's "issue" ,....entitle you to claim on the estate.

    Note: Unless there are obvious deficiencies in the Will ( lack of signatures, scribbled in crayon , no witnesses ...etc ) , then don't bother pursuing that path.

    Likelihood of Success

    You'll get "something" , but the existence of a dependent ( child of the defacto) will diminish your relative claim.

    Personal Effects

    Grab what you can and run - NOW. If there is the slightest whiff that you will be counter-accused of thievery, then get the defacto to sign a renunciation for those items.

    Size of the Estate

    Had your mother had a joint tenancy title with your father then the house in question would have passed directly to your mother - it would not be part of the estate of your father.
    But the title is in your mother's name and that in itself is somewhat irrelevant. Had your parents divorced , then your father would have had entitlement to some fraction of the house ( presumably) . But now the defacto will inherit that entitlement to claim .

    Centrelink Scam

    Yes, but when it comes to the Supreme Court action as to the merits of the defacto's claims, then that she claims to be "single" will act against her interest . I.e. If the "defacto" was in fact now just a "friend" , then she would have very little claim on the estate. But as there are other factors ( financial independence, separate houses ...etc ) :this requires work.

    Lawyering up

    At $20k - 30k - $50k (per claimant ), this will rip a hole in the estate's ability to provide for the claimants.
    Try to get as much information about the likelihood of success and the process and then negotiate with the defacto.

    You are entitled to self-represent.

    Were you to ultimately make a claim , then join together with claimants that aren't "competing" and use the same representation.

    No choice

    Expecting the defacto not to "know" that she can lay claim to to the house is a risk ( Presumably she discussed the assets that your father had with him ) - Also complicated by her living there (how to remove her....etc ). Yet, if you can wait out the period in which claims can be put ( 6 months in WA after probate is granted ) , it may work.... but I doubt it.

    The Public Trustee may themselves "discover" the entitlement to the house that your mother has title to ( I shan't use "owns" , as that is the issue at hand). Or perhaps they are just clerks doing standard searches that will miss such a potential asset.

    Of claims ( via a writ to the court) - Once anyone makes one , you've got to jump in yourself.


    In short, the big one is the house. Keep your attention on that and let all other side issues fall if they interfere with this.

    winston wolf likes this.

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