NSW Executor of Will has Conflict of Interest?

Discussion in 'Wills and Estate Planning Law Forum' started by Chelle161, 12 September 2018.

  1. Chelle161

    Chelle161 Member

    12 September 2018
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    My mum died in January. We couldn’t find a will. My brother “found” a will naming him as executor of will and got probate. We all have doubts about the validity of the will, but as the will divided all my mums’ property equally between her six children we decided not to contest it as it was what my mother would have wanted. The major asset is the house.

    The problem is, my brother has a mortgage over my mother’s house. He told my mother she was going guarantor over the house he was purchasing, but actually he gave my mother a 5% share in his property and has a mortgage over both properties making them jointly and severally liable for the mortgage.

    This now puts us in an uncomfortable position as he can sell the house as executor, and then pay off his mortgage without any of us being able to stop him. He is always short of money and has in fact already stolen $6,000 from my mother’s bank accounts to pay his personal debts. He is 62 years old and it is unlikely he will find a bank willing to refinance his $371,000 mortgage as he has a terrible credit history, no superannuation and huge credit card debts close to $100,000.

    I’d like to take a caveat over the house to prevent him from selling it without our knowledge but I’m not sure if we are counted as having a financial interest in the house. If we can’t take out a caveat then I’d like to have him removed as executor due to his conflict of interest. I am not well off myself and don’t have the money to engage a lawyer. What would you suggest myself and my siblings to do prevent a bad situation?

    I know that if he did sell the house and paid off his mortgage we could sue him to recoup the money, but again this would take time and would use money we don’t have and I’d rather prevent this situation from occurring in the first place, than trying to fix it after the house has been sold.

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