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VIC Messy Estate - Dad with Two Families

Discussion in 'Wills and Estate Planning Law Forum' started by M41, 18 February 2015.

  1. M41

    M41 Member

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    Need some help. I live in Qld but all the rest of my family live in Melbourne.

    My father has died recently. I am in my mid 50’s. When I was 16, I needed my passport to go on school exchange. Mum and Dad sat me on couch and explained that Dad’s name was not on birth certificate because dad was married to somebody else and that I had another 8 sisters and a brother.

    It seemed that Dad ran two families at same time (not as hard in the sixties as one would think). He’d stay with us till 3am in the morning and then go over to their house to be with them when they woke up.

    Over the following years my brother and I sought out and met some of the others. Some are older, some are younger. Dad was a bit of a controlling narcissist who loved keeping us separate and was only interested in what he had to say.

    Dad and his wife lived in a wealthy suburb where they owned the house Dad had bought in the 30’s. We moved from rental to rental each year. When I was about 17, Mum and Dad broke up and Dad resumed living full time with his wife. He then transferred his business and house to his wife’s name so mum could not sue for maintenance. Sadly, his wife died soon after from an incurable disease soon after. Dad was then unable to transfer titles back to his name and house and business remained in a family trust with the other children’s name.

    Dad stayed in his business for another 30 years. He sold business when he was about 75- 80 after a stroke. He always told us and our mother that the house would go to the other children and we would get the business.

    When he sold the business, the money went into the trust in the others children’s name. The other children gave him the interest to live on after many contentious arguments.

    Dad has just died and they have remained quiet about his estate. After one of them approached my brother today to ask what we expected, I rang the oldest who is the executor she said basically he had no money left, there is nothing for us as everything (3-4million assets) are left in trust to them. Dad did say we were to be given 50,000 each but strangely as he has no personal money left – everything is gone from his house( funny safe’s were open and all money he hid gone). They divided up all his personal belongings amongst themselves.

    Dad lived in fear of the youngest daughter’s husband as he was a barrister and said to us if he couldn’t sue to get his money then we couldn’t. There is no probate as his personal assets are less than 20k.

    Do we have any avenue to receive a share of where he lived or his business? I don’t really want the house as I deem that their mothers. My dad was a scoundrel but he was my dad, I want the business to be shared equally between all 11 children – I feel that is fair. They can split the house between themselves. I hate the idea of suing and the possible expense we could potentially open ourselves up too. What can we do?
     
  2. Ian Macleod

    Ian Macleod Well-Known Member

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    I have very little knowledge in this area but you may have a claim under family provision legislation. This is a good place to start

    In Victoria, any person can apply for a court order to redistribute a deceased person’s estate in their favour if they believe that the deceased person had a responsibility to provide for them, and did not do so. This area of law, family provision, exists in some form in all Australian states and territories. Family provision law recognises that, although people are free to give away their property by will after they die, or to not make a will at all, they also have a responsibility to provide for certain people, usually family members. 6.2 In Victoria, family provision is governed by Part IV of the Administration and Probate Act 1958 (Vic). The Commission’s terms of reference directed it to review and report on: whether Part IV of the Administration and Probate Act 1958 concerning family provision applications is operating justly and effectively, having regard to its objective of providing for the proper maintenance and support of persons for whom a deceased had a responsibility to make provision. - See more at: 6. Family provision | Victorian Law Reform Commission
     
  3. Sarah J

    Sarah J Well-Known Member

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    Hi M41,

    As this is a complicated matter involving company shares, you'd be best to speak with a wills and probate lawyer. First, you will need to see if there is a will left by your father. Even if the eventual estate is small, you can contest it as the deceased's biological son. However, you will need to work out how much your father actually had as "his assets" at the time of death and how much he transferred away. Also, you need to work out what his instructions were in relation to the shares in the business (i.e. did he still hold the shares, are they transferred to someone else, is there a share transfer prohibition with the company's articles) and whether any of amounts can be clawed back under legislation (e.g. under estate duty law). As you appear to be unclear about the specifics of your father's estate, a lawyer in wills and probate can help you track down your father's assets and see if any can be clawed back.
     
  4. M41

    M41 Member

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    Thanks you so much for taking the time to reply.

    I have contacted a Solicitor here in Qld and my brother will do so in Melb. We have now asked my oldest sister, the executor of the estate, for the copy of the will, schedule of assets and will ask for a copy of the trust.
     
  5. M41

    M41 Member

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    Thanks you for responding. My brothers has engaged a solicitor in Vic and they mentioned this amongst other things.
     
  6. Sarah J

    Sarah J Well-Known Member

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    All the best with this matter, M41, and keep us updated on your progress!
     

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