WA Statement of Assets & Liabilities - Probate Granted

[Tamara]

Hi Guys,

My mum passed away nearly a year ago (in July). A grant of probate was given back in December listing approx $60k worth of assets (monetary and vehicle/jewellery) and nill debts or liabilities. We have reason to believe one of the co-executors has acted out of role and spent and is trying to claim mums money illegally.

One of the co-executors sent an email to the other co-executor advising that she has $18k to be distributed to the beneficiaries (myself and my other siblings). Once asked where the remaining $42k had gone, she advised that it was to reimburse her for money spent (both whilst mum was alive and after her passing). This executor is the only one with access to my mums account. When asked for the receipts she advised us she doesn't have them all, and the ones she does have are suspect.

My questions are:
1. Shouldn't these reimbursements have been listed as debts on the statement of assets as they were all prior to the probate being granted?
2. Because she doesn't have receipts for all of these things, can she still claim for the ones she doesn't have receipts for?
3. How do we dispute these claims, what action are we to take?

Thank you and look forward to your help.

 

[Sophea]

Hi Tamara,

The executors of the estate have a joint responsibility to preserve the assets listed as part of the estate. They also owe the beneficiaries a duty of care to ensure that they are accorded the gifts made by the testator to them in accordance with the will.

In circumstances where the executor has a conflict of interest, the law will not allow that executor to place himself or herself in circumstances or in a situation where his or her own interests conflict with that of the beneficiaries, for example when the executor claims that he or she is owed money by the testator however it is backed up by insufficient paper work. Where this rule is infringed by an executor, one option available to the beneficiaries is an application for removal from office.

However, a court will take lightly a request to stand down an executor that has been appointed by the testator. There is a presumption at law that the executor is a fit person to carry out the role, as he was appointed by the testator as someone trustworthy enough to conduct their affairs after death.

The test used by courts to decide whether to remove an executor where there is proven to be a real conflict of duty is whether there has already been a serious level of "mischief" or dishonest conduct by the executor or a reasonably high level of risk of this happening in the future. As beneficiaries you would need to have pretty strong evidence that your allegations of misconduct are true.

Short of making an application for removal, I would first request to see full accounts relating to the estate and particularly the $42K that is missing, and if she does not provide them consider applying to the court to have to produce full records. If the accounts and records are unsatisfactory talk to a lawyer about making an application to the court.

I would seek legal advice about this first.

 

[Tamara]

Hi Tamara,

The executors of the estate have a joint responsibility to preserve the assets listed as part of the estate. They also owe the beneficiaries a duty of care to ensure that they are accorded the gifts made by the testator to them in accordance with the will.

In circumstances where the executor has a conflict of interest, the law will not allow that executor to place himself or herself in circumstances or in a situation where his or her own interests conflict with that of the beneficiaries, for example when the executor claims that he or she is owed money by the testator however it is backed up by insufficient paper work. Where this rule is infringed by an executor, one option available to the beneficiaries is an application for removal from office.

However, a court will take lightly a request to stand down an executor that has been appointed by the testator. There is a presumption at law that the executor is a fit person to carry out the role, as he was appointed by the testator as someone trustworthy enough to conduct their affairs after death.

The test used by courts to decide whether to remove an executor where there is proven to be a real conflict of duty is whether there has already been a serious level of "mischief" or dishonest conduct by the executor or a reasonably high level of risk of this happening in the future. As beneficiaries you would need to have pretty strong evidence that your allegations of misconduct are true.

Short of making an application for removal, I would first request to see full accounts relating to the estate and particularly the $42K that is missing, and if she does not provide them consider applying to the court to have to produce full records. If the accounts and records are unsatisfactory talk to a lawyer about making an application to the court.

I would seek legal advice about this first.

Hi Sophie
I contacted the executor asking for receipts for money she had already spent. She has responded saying that she deserved the money as she was mums family at the time.
What action do i take now? I obviously need to take her to court asking her to pay back this money is that right?

 

[Sophea]

Hi Tamara, yes, that doesn't sound as if the money has been applied to a bona fide debt or appropriated in accordance with your mother's wishes. I would definitely seek legal advice as to your options for pursing the matter further.

 

[Pete Evans]

Tamara, a slightly different way of looking at is when someone applies for probate and lists assets and the value of things, the prices are subjective. Subjective means subject to someone else paying for them and the price can vary from day to day . Which then I mplies lawyers often working for executors tell executors to lie about the value of things. Does that make sense?

Obviously the accounts and amount of cash held changes as can the debts which often take time to find.

So another step is to write to the Supreme court and ask for an administration account of the estate . Probate Office - Administration Account - Supreme Court of Victoria

I'm guessing all States offer a similar thing and the above is for Victoria? You need to be a beneficiary of a will to request it and I have been told in Victoria the request for an admin account has never been declined. The point to doing this is the executor must sign an affidavit declaring the figures of the account are true and correct.

So if they lie to the court and you can prove they have lied it then works in your favour to fight them in court plus an affidavit when signed is meant to be a legal binding factual account. The trouble is buggers often still lie. Further some refuse to do it which is also then further grounds for you to approach the court to have your issues dealt with.

PLUS if all else fails and they lie on the Administration account to the supreme court you can go to the police and have them charged. But then the conjecture happens whether they can use the estate cash to fight the charges of lying on an affidavi .

If you read my first post I'm in a similar position to you. I'm not qualified to give advice and I have an unhealthy hatred of freaking lying, deceiving lawyers. Cheers.

VIC - Executor of Will - Removal or Sue? | LawAnswers.com.au