QLD Statement of Claim - Executors Suing for Property Not in Will?

Discussion in 'Wills and Estate Planning Law Forum' started by 7and3, 21 August 2018.

  1. 7and3

    7and3 Well-Known Member

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    Hi,

    My mum was put into a will a couple of years ago to receive a property as a gift plus she was the executor of the will. However, the writer of the will back then decided to gift the property to my mum whilst alive and able to do so as they were aware that their estranged family may contest the will. The property was gifted and my mum was given ownership.

    Some many months later, the family became privy to this and after many years of having nothing to do with the now deceased, they came back in contact and convinced the now deceased to change the will into their name and have them as executors. The now deceased passed away weeks later.

    My mum is now being sued for unconscionable dealings and so on but the claim reads as follows:

    Applicants: XXXX and XXXX (as the Executors of the Will of XXXX , the deceased)
    Respondent: my mum

    We are a little confused, as they are acting as Executors of the will trying to sue my mum for a property that is not actually in the will.

    Is this something that is able to be done? FYI the initial document was an Originating Application and Affidavit which was through the supreme court and following this a mediation was held with no outcome. The Justice at the time stated if mediation was unsuccessful then the applicants had to file a statement of claim and so on.

    Much thanks.
     
  2. winston wolf

    winston wolf Well-Known Member

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    Hi
    As executors they pursue the interest of the deceased/estate.
    So just like if someone owed money to the deceased and now the estate they can try to reclaim the debt.

    In this case they are "saying" the decease was tricked into transferring the property so they are trying to reclaim it on behalf of the estate and therefor the beneficiaries.

    If there is a copy of the will that leaves the property to your mum that would be very beneficial to you claim that it was given freely.
     
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  3. 7and3

    7and3 Well-Known Member

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    Much thanks. Yes, the will prior to the deceased's final will has my mum as executor and as the beneficiary of the property, which she has a copy of.
    They family swiftly had the deceased change their will six weeks prior death to remove my mum.

    Your clarification above is understood, it just did not make much sense initially.

    It is a situation where all they can do is "Presumed" undue influence and so on as they do not have proof as it does not exist, so this grey area is their only hope.
     
  4. Rob Legat - SBPL

    LawTap Verified Lawyer

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    An argument could possibly be made that since the original will dealt with the property, it was then gifted, and the later will did not deal with the property, that the testator’s intentions were clear that she intended to gift it. If the later will did mention the property, then that may lead to further know argument - including that the testator was not of sufficient capacity to create the later will.

    Not sure how well that would fly however. Was she legally represented when she gifted the property? That could be useful.
     
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  5. 7and3

    7and3 Well-Known Member

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    Much thanks. Yes certainly legally represented when she gifted the property. Her intentions were very clear and she made it well known that she wanted to gift the property to my mum. She was determined not to leave anything to her family as both sides hated each other. This is actually stated on audio recordings weeks after the gifting.

    There appears to be absolutely no doubt at all that she was under influence to change her will again weeks before her passing to a family that had nothing to do with her until her last days. However, one cannot allege this without proof. The signature on the will that day was extremely different and shaky, not suggesting forgery at all, but stress and so on. Two weeks following the final will being signed, a specialist advised that she required all her decisions to be made by someone else as she was not capable. Plus the nursing staff at the aged care were witness to the stress and confusion the reacquainting family were putting on her. apparently this is a typical and common situation according to nursing staff, where a family arrive in the last days to make their claim.

    We are at show of documents, so currently collecting character references. Mum has worked tirelessly for many years with foster children, elderly and if she is googled there are many accolades demonstrating this. It is hoped that this will assist in showing her honest character. Additionally, the applicant was mums best friend for over 26 years and in the last month prior the death of the testator (the applicants mum) mums best friend of 26 years is suing her.

    A bit sad for my mum, but I guess money changes people. The thing is, if it goes to trial there will be nothing left anyway as the applicants lawyers have already advised that a trial will be the value of the property. rather foolish in my opinion.
     
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