NSW Estranged Daughter Estate

[OffGreenFX]

To cut a long story short, my husband cared for his grandma for years after his mum died. The Grandma had one estranged daughter.

The grandma had left the property she was living in to my husbands mum decades ago, and when his mum died, grandma went to her normal solicitor and asked to change the will to leave it to my husband instead (as he was the only child of who he had left the property to previously).

The solicitor said to avoid a family provision claim it was best to transfer the property to my husband then and there which she agreed to do and my husband paid stamp duty on it. The estranged daughter found out years later when the property was sold and the Grandma moved in with us, but tried and failed to do anything as my hubby had done nothing wrong. The Grandma ended up standing up at a tribunal and stating she wanted nothing to do with her estranged daughter and was never close with her or her family.

It’s been over 6 years since the property transfer was done and grandma has passed away. She began to suffer some cognitive decline after a severe bout of pneumonia 2 years ago, but nothing else was wrong and her own normal doctor and solicitor cleared her mind and tested her capacity when the transfer happened. We have upgraded our home and lived with Grandma in a bigger home we purchased with the sale of the property she transferred to hubby and ours.

Since it’s been well over 3 years am I right to say notional estate should not be applicable? Also the property should not form any part of the estate since it was transferred so long ago? There was nothing dodgy done with doctors or solicitors as Grandma saw the same ones she always had and not my hubby’s solicitor. Even the previous will from decades ago shows the estranged daughter was not left the house and outside of the estranged daughters family and one relative who is a friend of theirs, all other family and relatives have been seeing Grandma and know she was well looked after and happy.

We have kids now and hubby has been diagnosed with a crippling disease that has reduced his working hours and made life tough. We aren’t in the position for a long legal dispute from disgruntled relatives, although I’m struggling to see what they could actually do here other than yell and scream.

 

[Rob Legat - SBPL]

So to summarise: You're concerned that your husband's aunt may seek a share of your existing house because your husband used funds to contribute towards it from the sale of his property (which was his grandmother's property), which she had transferred to him years before her death - and which transfer has already been tested in legal proceedings?

My understanding (bearing in mind I don't practise in NSW) is that for a notional estate to be considered there first needs to be a successful family maintenance claim. The estate then needs to be insufficient to cope with the order that arises out of that claim. Then, the court will consider any 'notional estate'. One of the conditions of assets being part of a notional estate is that they must have been in the ownership of the deceased within 3 years prior to the date of their death.

Given the time frame, the circumstances of the transfer, and the difficulty in tracing the asset (i.e. it's been sold and the proceeds intermingled with your prior existing house to buy a new residence - which your husband's grandma also benefited from), I'd say there's almost no chance your husband's aunt would have a realistic claim.

 

[OffGreenFX]

So to summarise: You're concerned that your husband's aunt may seek a share of your existing house because your husband used funds to contribute towards it from the sale of his property (which was his grandmother's property), which she had transferred to him years before her death - and which transfer has already been tested in legal proceedings?

My understanding (bearing in mind I don't practise in NSW) is that for a notional estate to be considered there first needs to be a successful family maintenance claim. The estate then needs to be insufficient to cope with the order that arises out of that claim. Then, the court will consider any 'notional estate'. One of the conditions of assets being part of a notional estate is that they must have been in the ownership of the deceased within 3 years prior to the date of their death.

Given the time frame, the circumstances of the transfer, and the difficulty in tracing the asset (i.e. it's been sold and the proceeds intermingled with your prior existing house to buy a new residence - which your husband's grandma also benefited from), I'd say there's almost no chance your husband's aunt would have a realistic claim.

Thankyou. My hubby was power of attorney over his nanna however even that was setup a couple of years after the property transfer was done, meaning the power of attorney had not been abused in anyway. The aunt ran to a lawyer and tried to put a caveat on nannas house when she drove past and saw it up for sale and was told she had no merit after her solictor contacted nannas solicitor and confirmed what had taken place. Her solicitor recommended she go to a tribunal to protest hubby being power of attorney as the aunt couldn’t get it through her head that the transfer was done years earlier, and nanna got a letter from her usual doctor stating she was of sound mind, nanna attended the tribunal and stated (which we have a tribunal recording of) that she had never been close with her estranged daughter, wanted nothing to do with them and was well cared for by my hubby. We had close relatives in attendence on our side and all the aunt had was her adult kids, no-one else agreed with her. The tribunal dismissed the case and the aunt stormed out with her kids saying they would call the police on us and go to a real court. That was over 2 years ago now and we’ve heard nothing since from them, however we hear anecdotally they are still very angry.

Now that nanna has died, I know they are going to start this again. Due to the timeframe, we have taken out a mortgage on this property and done $150K + of renovations, meaning our money is heavily mixed in this property. We feel it’s been years now and we should reasonably be able to do with our own property as we like.

I just feel we have 2 young kids, hubby was diagnosed with a chronic disease last year which has severley impacted his work hours and now some people are telling us this aunt will come after us just for us to waste money defending ourselves and her solictors will just make us pay for it. I keep feeling we will be made bankrupt and homeless as a family. I also keep wondering how her solictors will make us pay when the property isn’t part of the estate? If an estate is what the deceased owned at time of death or 3 years earlier then it will only be $20K or so in the bank account.

One relative’s partner told me yesterday when a deceased estate is involved, they’ll find an angle, he said it doesn’t matter if property is given away or anything else, he said they’ll still make us pay until we hand them over money.

 

[Rob Legat - SBPL]

There's a difference between 'trying' and 'being successful'. People will try. It's then a matter of getting it knocked out as succinctly as possible. There's not much/anything you can do to stop her from trying - only make it as hard as possible. And, really, it appears that it's going to be difficult for her to mount a cause of action that has any merit.

 

[OffGreenFX]

There's a difference between 'trying' and 'being successful'. People will try. It's then a matter of getting it knocked out as succinctly as possible. There's not much/anything you can do to stop her from trying - only make it as hard as possible. And, really, it appears that it's going to be difficult for her to mount a cause of action that has any merit.

Thanks for your replies, I really appreciate it and you’ve helped ease my mind a bit. Hubby is on the verge of suicide over this, feels he’s failed us all. The Aunt is quite vicious and uneducated and her behaviour is exactly why nanna wasn’t close with her. She threw around statements like taking us to the federal police and locking hubby up for years at the tribunal last time unless she was given the full sale proceeds of nannas house.

I‘d hope that when speaking to a lawyer, they’d explain this isn’t realistic and she needs some actual evidence rather than just throwing around accusations hoping something sticks. Her solictor would also be taking a risk of outlaying money they’d never get back if they took her on with no evidence wouldn’t they? I know she’s a daughter but when there is little estate, they’d be banking on something pretty unrealistic happening.

 

[Rob Legat - SBPL]

"vicious and uneducated" - two of the worst things to have in a client, or in a civil litigant.

Solicitors are supposed to vet their clients' claims stand up to realism, are substantiated, and are honestly made out. That's a very complicated process, and not always the easiest one to navigate. Accordingly, what should happen and what does happen can be different.

 

[OffGreenFX]

Wow, you’ve made me worry now!

Surely, a solicitor will tell her from the beginning she won’t be in a position to be given every cent like she expects? They’d be standing to lose a lot of money if she rejects everything, it goes in front of a judge and they rule her expectations unrealistic? How would the solicitor recoup all their time and costs when it fails in front of a supreme court judge.

 

[Rob Legat - SBPL]

In a perfect world it shouldn't happen. We don't live in a perfect world.

Very rarely in any venue does a person give a completely unbiased (consciously or unconsciously) account of things. Even if they do/or that's determined, so long as it's not an abuse of process the client may want to proceed - but I would suggest in that case it would be 'money in trust before anything is done'.