NSW Legal avenues to settle a personal property dispute between beneficiaries

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PeterP

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22 August 2021
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I am trying to find out what legal avenues may be available to a beneficiary to claim items of personal property that are in dispute. Our parents gave away many of their personal possessions that would hold some sentimental value before they died and they did not keep a record of the gifts. They also did not say who was given what. A dispute has arisen as to ownership of one of these items and siblings are arguing over who has legal right to it. It has been in the possession (gifted) of one sibling for a very long time and prior to death but there is no record of this . The other sibling disputing the claim states it was not gifted believing it to be part of the estate now being settled and has demanded it returned. It is now well past twelves months from the date of death. There is sufficient corroborated verbal evidence to suggest the sibling who has the item was given it (and therefore entitled to keep it) but we cannot move on to settle the estate while there is no agreement and all compromises have been rejected. This could go on forever or it could be decided by a court if that option is still open to the disputing sibling. Are these matters something the courts will still determine after 12 months? Is it a Supreme Court matter or another jurisdiction? The disputing sibling has engaged counsel but so far the argument goes around in circles with demands made and no evidence to support the claim. There has not been any threat of legal action so is that possible or are the demands just bluff? There is little point engaging independent counsel to pursue this unless legal action is taken by the disputing sibling.
 

Tim W

Lawyer
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28 April 2014
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Is there a will, or is this an intestacy?
 

PeterP

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22 August 2021
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After some reading I am of the view my query may fall under the banner of a promissory estoppel and I don't believe there are time limitations. There would need to be evidence of the promise and other proofs for any action to be successful.
 

Tim W

Lawyer
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28 April 2014
4,283
751
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Sydney
After some reading I am of the view my query may fall under the banner of a promissory estoppel and I don't believe there are time limitations. There would need to be evidence of the promise and other proofs for any action to be successful.
Promissory Estoppel is a concept more associated with contract law than with Wills and Estates...?
 

PeterP

Active Member
22 August 2021
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Promissory Estoppel is a concept more associated with contract law than with Wills and Estates...?
Thanks Tim for taking an interest. I have been reading many instances of how it has been used in Wills and Estates. A number of cited cases in Vic and NSW. Mostly to do with real property but can be about any property. Many solicitors are now touting for business using this concept for people who cannot make family provision claims or when the time frame for a family provision claim has lapsed. Google this phrase - promissory estoppel wills and estates and see what comes up. There is one case from Sydney that was in the news regarding a multi million dollar mansion and the promise of an old lady to give it to the neighbour's if their renovation did not take away her water views and they looked after her until she died. The plaintiffs won even though the Will gave the house to someone else.

Is it likely the aggrieved sibling will go as far as taking court action for such a small thing? Hard to say for sure but it would not be inconsistent with his nature. I just want to know what is possible. There is very little information available about settling minor property (personal) disputes and I just don't see the SC interested in something this but can't find any other jurisdiction.
 

PeterP

Active Member
22 August 2021
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Just to clarify - personal property of our father, given away by our mother (executor of his estate) after his death and according to his wishes but no written record. Now it is claimed to be part of her estate and ownership disputed.
 

Tim W

Lawyer
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28 April 2014
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(I may not be the guy you want to lecture about estoppel in Wills and Succession....)

Let's start with the basics.

1. Was she the executor at the time of the purported gifts?
Or did this gifting occur between death and the Grant?

2. If there's no record, how does anybody know what his wishes were?

3. What is the nature of the dispute?
 

PeterP

Active Member
22 August 2021
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I am not wanting to lecture anyone about estoppel. Just saw it being used in Wills and Estates. Asking if it is possible this doctrine could be used to make a claim or what other ways are open to settle these small disputes.

1. The gift occurred shortly after death so was before grant of probate.
2. Two people were with him before he died (one was me) when he verbally made his wish. Neither were the recipient. He had made his intention known verbally at many other times. There are emails from before he died indicating his intention with regard to this item specifically but only from me to the recipient.
3. The dispute is about who should possess the item but it has been over four years since it was gifted. The person making the dispute is a beneficiary of the estate being settled and has claimed this item for himself. He has demanded it returned to him. It has been alleged the item was still at the house when the testator died but no direct evidence of this other than from the person making the dispute.

I am assuming the corroborative evidence of those not benefiting may weigh in favour of the recipient of the gift in the absence of anything written but do not fully understand to what extent this dispute can affect the settlement of the estate or how it can be settled if neither party will surrender. Thanks again for your attention on this.