QLD Father Will Problems

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9 November 2014
My father died last month while in a nursing home. A joint loan in both my father's and mothers names was taken out to pay for the nursing home bond. The money from the bond will come back into the estate once probate has been granted.

In his will he leaves a certain amount of money to the 3 grandchildren and then whatever is left of the money split 50/50 to his only 2 children. He has left his share of the house and super to his wife.

Currently the asset and liabilities statement only shows half the loan as a liability as it was a joint loan. Therefore there will be money in the estate leftover to pay out the grandchildren and his children.

However my mother who is an executor feels that everything that was my fathers is hers by right. She hasn't informed any of the grandchildren that they are beneficiaries. Should beneficiaries be told they are on the will? Should this be done before or after probate?

I think that she will just take the whole amount of the bond money when it comes back because she doesn't understand that it is the estates money and not hers. She has hired a lawyer to help her. Will they make sure she follow the correct procedure?

What can I do if she doesn't follow the instructions of the will and just takes all the money?


Sarah J

Well-Known Member
16 July 2014
Melbourne, Victoria
Hi Lilly,

1. Your mother will not have the whole of your father's estate as of right. Your father is free to leave his estate to any beneficiary he wishes.
2. Your mother will be entitled to any joint accounts/property held under "joint tenancy" (otherwise known as "joint owner" in non-legal terms). This is because the right of survivorship immediately vests your father's share in the joint account/property in your mother (as surviving joint owner). Your father cannot divest his share to anyone else because the law does not consider him as having a share to give in this case.
3. Who is the named executor? If they are over 21 years old and of mental capacity, they should apply for probate as soon as possible.
4. Yes, the executor should inform whomever is named as a beneficiary under the will that they may have a share under the will. However, the share does not vest until the executor passes the property over to them. The executor should only do so after grant of probate to avoid liability. Beneficiaries have a right to see a copy of the will.
5. Beneficiaries under 18 cannot receive a gift under will until they reach 18 (or any further condition expressed in the will). In this case, the gift is still theirs but should be given to a parent or guardian to be held on trust in favour of the beneficiary (minor) until they attain of age.
6. The executor, in administering the will, needs to act in the best interests of the named beneficiary as a whole. If they do not do so, they may be liable for breach of fiduciary duty.
7. Your mother, as the will maker's wife or partner, will most likely have a claim in the estate, even if she is not left anything under the will. However, she will need to contest this at court. She can only do this after grant of probate has been made.


If your mother is an executor of the will, she has certain responsibilities to the other beneficiaries under the will. She is required to contact and notify beneficiaries, obtain a grant of probate, pay all of the deceased's debts, income tax and funeral expenses and distribute the assets according to the terms of the will. I'm sure if she has retained a solicitor to assist her they will advise her of these responsibilities and that she has a duty to beneficiaries under the will and can be liable for failure to fulfil her role properly.
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