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NSW Renouncing Mother's Grandson as Executor of Will - Any Recourse?

Discussion in 'Wills and Estate Planning Law Forum' started by Zoe jones, 22 September 2015.

  1. Zoe jones

    Zoe jones Member

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    I am co executor of will to my late mother's deceased estate with her grandson. Both he and I had power of attorney prior to her death but he had access to her accounts to pay and money due when she was placed into a nursing home. I have now found out that he spent approx $134,000 from her estate on himself for overseas trips, buying a unit, etc, etc. He has been sent a renunciation letter but is not responding! What is our recourse next?
     
  2. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi Zoe, I have dealt with a similar situation in Tasmania, and it has ended up being reported to the Police Fraud Squad for investigation and possible criminal prosecution for fraud.. in that case the parent had dementia, and had no idea what was going on with the money.

    The most difficult thing in these situations is normally obtaining the required evidence of the misappropriation of funds.

    As you were also Power of Attorney with direct access to all records, bank accounts, etc. I assume obtaining the evidence will be easy for you.

    Do you already possess the required evidence, or will need assistance to obtain more?

    Did your late mother suffer from any mental disability? dementia? that meant she would not understand what was happening with her financial affairs? Is it possible she gifted the money to her grandson? or knew and approved of the expenditure?

    In NSW... would need to look at the Powers of Attorney legislation, and determine civil breaches and remedies... as the grandson now holds real estate that should theoretically be the property of your late mother's estate and be available for distribution to the beneficiaries of her Will.

    Kind regards
     
  3. Zoe jones

    Zoe jones Member

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    He was the only one with access to her money and I trusted him to do the right thing. He also took her and changed her will in 2012 to his advantage effectively cutting out my daughters ! I have obtained all bank statements and medical records from her Dr who cared for her in the nursing home . They are all very explicit. The money was being directly transferred into his accounts. The dr's notes say that she was very disturbed mentally and had delusions and manic behaviour. She was also hospitalised in a psychiatric unit and had shock therapy. Whilst she was there he took over $9000 !!

    Would we have to now sue him to get the money back into the estate of can I apply for sole executor. But can he then contest that. I'm at a loss as to what my stance is! Our solicitor is not sure about all of this as its only a small firm . Will we need to hire a lawyer??
     
  4. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Zoe, there are a number of legal matters here....

    1. breaches of the NSW POA legislation;

    2. potential criminal prosecution (though a higher level of proof is required); and

    3. a challenge to the modified Will on the grounds on her mental capacity at the time to change her Will, and his undue influence over both her and the changes to the Will (which were to his benefit).

    Yes, he can challenge and defend any of the above.

    Kind regards
     
  5. Zoe jones

    Zoe jones Member

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    Thanks I'll let you know what transpires.
     

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