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VIC Duty of Executor of Will to Find Estranged Sibling?

Discussion in 'Wills and Estate Planning Law Forum' started by thinking of a name, 14 July 2016.

  1. thinking of a name

    14 July 2016
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    I'm trying to find a bit of information for my mum - I'm still finding out information, but just a clue on what could happen is useful. I will try to make this a coherent as possible, but it's still a bit messy.

    Short version in bullet points:

    - Her mother (Nanna) died in 1997.
    - At the time of Nanna's death, my mother was living in Queensland.
    - Nanna died in Victoria.
    - The probate was advertised in a Victorian newspaper - my mother was in Qld (previously known to be in NSW).
    - There was no effort by the siblings to contact my mother.
    - In 2006, they may have 'stretched the truth' about the actual value of the estate to dissuade my mother from challenging the will in a more timely manner.

    A few more points of note:

    - Prior to Nanna's death, my mother had been estranged (not by choice) by Nanna for many years.
    - A mutual friend of mum and her brother passed on his phone number late in 2006.
    - My mum called her brother.
    - She found out Nanna had died in 1997.
    - The brother says Nanna died with nothing - "only enough to buy a ring".
    - One younger sister asked very bluntly, "are you going to contest the will?". My mother said no - the sister hung up the phone and there was no contact since.
    - The other sister said she got nothing from the will because there was nothing. There was limited contact since.
    - There were some mutual friends but there was no effort to pass on the info of Nanna's death.
    - My mother tried to get a copy of the will in 2006 and was given no info on how to get a copy due to an unhelpful clerk at the QLD BDM.
    - I was doing some historic house price searching and found that the price Nanna's house was allegedly sold for was not the price it was actually sold for. It sold for a lot, lot, more.

    Reasons for the estrangement:

    One day, for no apparent reason, my mother was locked out of the family home. Nanna just closed the door, moved suddenly, and that was that. My mother was an adult and married with small children. At the time, she had a younger half brother and two half sisters (early teens). My mum had no contact with her siblings either.

    Nanna had been physically abusive to my mother. As a child, she was tied up and beaten on multiple occasions. This occurred well into her teens as well - until people at work had started asking where all the bruises came from. No charges were made. It was the 60s. Little surprise, my mother wasn't too keen to find out why the door was closed.

    Of note, before this whole estrangement happened, my mother worked to pay off her parents' houses (multiple). My mum just handed over her pay-packet every week.

    Info on the QLD BDM episode:

    She went to the Qld BDM for advice on what and where she should go. Her reasoning was that it is where you get a death certificate; they should know a bit about the funeral and estate business too. The girl behind the counter belittled her for not knowing that her mother had died all those years ago. My mother didn't get any information and left with deep feelings of guilt and shame. She made no more attempts to get any info.

    Why I'm asking now:

    The thing is, due to some stuff I'm going through at the moment with my late father's estate, I've found out that Nanna's will and probate documents are now publicly available. I'm waiting to get a copy, and I'm not sure what is exactly in there, but from a bit of searching, it seems like Nanna did not die penniless, as my mother was lead to believe. Not loaded, but she did own a house which was sold for quite a bit, and I'm not sure what else she had.

    My questions:

    What duty did the executor of will have to locate all potential claimants on the estate, especially the eldest daughter?

    If the family had fibbed about how much the estate was worth, as a ruse to ensure my mother didn't make a claim at an earlier time, what could be done about that? Is there a chance that my mother could still get her share from the estate - or would this be futile?

    I'm just trying to gauge if something could be done or not. My mother is happy just getting a copy of the documents, but now she's concerned that she's been cheated out of her share. She did pay off a huge chunk of her parent's mortgage. Any help is well appreciated.

  2. Sophea

    Sophea Guest

    The succession legislation in most states provides that if an executor or administrator of the estate of a deceased person has published a Notice of Intended Distribution of the estate in the proper manner and form then, provided that certain further conditions are met, the executor or administrator is not liable for claims for family provision that were unknown to the executor or administrator at the time of distribution.

    I don't believe your mother would have any recourse to pursue the matter at this stage.

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