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QLD Grandparent's Deceased Estate

Discussion in 'Family Law Forum' started by Mindy Luck, 24 June 2015.

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  1. Mindy Luck

    Mindy Luck Member

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    in short my grandma died and left my father half the estate. Due to the long time period 1 1/2 yearsof this draging on . My aunty who is appointed Executor of the estate has clamed my father has Forfeited his side of the will.he did not. He did state in a letter that although he no longer wants to collect any thing he wishes his children to have his share, she never contacted us. she has no signed document from my father stating he has forfeited anything . my father has had medical issues due to the stress and has signed it over to us. Due to the fact he has not forfited his side can I go for damages as she has regestered mailed a letter stating my father has and she was legaly advised . it is looking like I will have to proceed though the legal system to get Items and this is going to cost me can i ask should she lose case she pays my cort costs pluss stress say $10,000.
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Mindy,

    The executor is responsible for administering the estate. This means that your aunt, as executor (is she the sole executor?) is the only person able to deal with the estate assets until she makes a distribution. Therefore, if the distribution has dragged on for 1.5 years (which is actually not that long a time when it comes to wills and estates), this is not your father's fault.

    Administering the estate typically takes longer than 12 months because probate must be granted, assets must be gathered and valued, advertisements for unknown creditors need to be published and the court usually allows 6-12 months to wait for creditors and potential beneficiaries to challenge the will. Distribution should be made only after all these matters are settled. However, 1.5 years may be long for a small estate. If this is the case, your aunt may have been stalling and your father, if he still wants payment (to himself or his children) and your aunt has not dispersed the estate assets, can apply to court for an order to distribute.

    Your father cannot refuse a gift as beneficiary without formalities being made (i.e. expressly stating this in a formal letter or in writing). He is still entitled.

    If your aunt has dispersed your father's gift, then she will probably have breached her fiduciary duty (owned to your father and other beneficiaries under the will). Your father has a right to (i) have your aunt account for his share of the estate, and (ii) any profits or interest on this share.

    Your father will unlikely be able to claim compensation for stress. The law does not punish but rectify positions of parties to what is right. If your father is successful, the judge will award costs. There are a few different types of cost orders the judge may make. The most common is party-party costs. This means that your father will have his fees and expenses reimbursed by your aunt. But the fees and expenses spent must be reasonable. Your aunt may dispute the final bill. If this is the case, the costs will be "taxed" by a "taxation officer". The officer will go through each item on the list, determine if the expenditure was reasonable and if the amount is reasonable. There is a list of "reasonable costs" published by the court against which the officer will refer. This list is very detailed. Typically, your father will receive up to 1/3 of his actual expended costs. Your father's lawyer will be able to explain this more to him.

    If your father wants to leave the gift to his children, he will need to first accept the gift himself, then gift it as he likes. This can happen at the same time.
     
  3. Mindy Luck

    Mindy Luck Member

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    I thank you for your detailed help. the problem is due to dad having medical issues he can no longer deal with her and a final list of goods in the house is still yet to be finalised tho all Money has been signed off on. she has all goods stored and is not listing all items she has then said dad forfited yet he stated he no longer wanted to have anything and it was to be given to us can I take her for fraud as dad has signed no such paperwork. don't want to take her to court as not what gran wanted but I have to make her aware of not doing the right thing by the law. I have also asked her to provide a copy of this so called document with no reply so thinking of next step to take before it goes to court process. have not seen legal help as it is costly and I have little income.
     
  4. Sarah J

    Sarah J Well-Known Member

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    I'm afraid you have very little recourse if you do not want to take her to court. If your aunt is refusing to provide a full list of assets, or committing fraud, the only place to challenge her is in court, unless you believe you can get through to her in mediation.

    From what you are saying, your father could have an action against your aunt for mismanaging the estate. He may apply to remove your aunt as executor. However, he will still need to go to court for this. If he is unwell to pursue this, you can pursue this on his behalf by having him execute a power of attorney.

    Speak with a wills and probate lawyer first. Additionally, you may be eligible to some free help from your local community legal centre.
     

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