LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

TAS Deceased Estate - 'Without Admission' on Deed of Settlement?

Discussion in 'Wills and Estate Planning Law Forum' started by Jenny P, 11 July 2016.

  1. Jenny P

    Jenny P Active Member

    Joined:
    23 November 2014
    Messages:
    12
    Likes Received:
    0
    Have been presented with a 'deed of settlement and release' from Executor of the deceased estate for my cousin. I am helping in regard to her late stepfather. Can you clarify the meaning of "This deed is entered into by the parties without admission of any kind"?

    Is it the same as 'without prejudice' which I don't quite understand either?

    Thank you
     
  2. Michael T

    Michael T Well-Known Member

    Joined:
    9 April 2014
    Messages:
    151
    Likes Received:
    22
    Your cousin should be getting a lawyer to review the deed - the actual wording of the deed are more important than the 'without admission/prejudice' wording.
     
  3. Jenny P

    Jenny P Active Member

    Joined:
    23 November 2014
    Messages:
    12
    Likes Received:
    0
    Thank you for your time and reply.

    My cousin and I are located in Tasmania. The 'deed/release' has been written in Queensland by my cousins's stepfather's estate lawyer and the Executor (the sister to the deceased). Tasmanian legal aid won't even touch it, although we just wanted basic confirmation and understanding of the wording just as you state. So...we aren't signing and have to wear the consequences which may be a loss of money. But, realise trying to negotiate the 'terms' of the deed will only mean further legal fees and work out the same, regardless. So the executor wins anyway.

    The Estate lawyer/executor agreed before they issued the deed that they would reduce the 'cost order' by 30% ( lost the 'caveat' case in the QLD Supreme court prior) on the provision that we remove the 'family provision claim' we filed, which we agreed to, which meant about $4,000 reduction on the 'cost order' instead of any change of the estate distribution to my cousin of 25%. (Little compensation for her 25 years with her stepfather in QLD where his sister (the executor) in New Zealand and her daughter receive 50% and 25% respectively and never been to QLD).

    To negotiate the terms of the 'deed', I know the Executor won't budge and the effort for trying would cost the same in legal fees to no avail and further reduce my cousins 25% share of the estate which is small anyway. When one is dealing with interstate estate matters it is very difficult obviously. The deed has a clause saying that we understand it, and believe it to be reasonable and fair. Well, we can hardly sign it if we can't get any help and don't know if it is 'fair and reasonable', which I suspect not.

    The deed has words such as "This deed operates as an absolute bar and defence to any action, suit, claim or demand commenced or made by either party in respect of any claim against the executor or the estate or the applicant and may be pleaded as such to any action, suit claim or demand so commenced or made."

    The fact is during the course of events we received a document titled 'family deed of arrangement' signed by the executor and my cousins stepfather in 2012 to which my cousin was excluded although a contingent beneficiary. The executor by all account seems to have changed the original trust deed (inheritance from deceased parent)for an investment property of NZ$500,000 from 'tenants in common' to 'joint' without consulting all affected beneficiaries such as my cousin for being the 'child/children'. The executor's only daughter however also signed the new 'deed' and the property is now in her name.

    We may still have cause to have this decision of the executor questioned under the NZ supreme court as per "Section 68/Trust Act NZ" (same as section 8/ Trust act QLD). We don't know, but... don't want to sign the deed just in case, as per it's wording but as you can see just drowning in legal matters because we can't get any local free legal advice. For just the understanding of the documents, we have received for their legal wording, as very daunting when only 'lay'.

    Kind regards
     
  4. Tim W

    Tim W Lawyer

    Joined:
    28 April 2014
    Messages:
    1,715
    Likes Received:
    402
    I agree with Michael T above - the body text is much more important
    than this clause, and your cousin needs a lawyer of their own.

    Don't panic, there is no conspiracy here to do your cousin out of anything.
    The lawyer in Queensland will be trying to Do The Right Thing according to law up there.

    As to other suggestions, first things first - if your cousin doesn't understand it,
    then they should not sign it.
    That said, be mindful of any dates or timeframes that may be included in the letter.
    For example, look for wording that looks something like

    "Unless we hear from you by <date>, we will take it that
    you <agree/don't agree>, or <want/ don't want>
    'thing X' to happen."​

    You may do best to engage a solicitor in the state where he died.
    If that was Queensland, then you can search for one here.

    Note:
    • You don't have to live in Queensland to instruct a Queensland solicitor.
    • You may not have to actually go to Queensland for a solicitor there
      to do work for you.
    • There will be paperwork to sign, and yes, the solicitor will bill you for the work.
     

Share This Page

Loading...