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VIC Will and Fair Market Value Issues

Discussion in 'Wills and Estate Planning Law Forum' started by konichiwa, 8 January 2016.

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  1. konichiwa

    konichiwa Member

    6 January 2016
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    Two parts to this. (sorry might be long)

    Part One

    The will states for all properties to be sold, and split evenly between beneficiaries. Pretty straight forward and fair, you'd think.

    Issues have arisen due to one of the beneficiary's purchasing the family home. Initially, everyone was happy, but now the family has split in half and relationships unlikely to ever be repaired.

    Some beneficiaries believe it is not at fair market value (see background info added at end of this part), and added complications - there is no settlement date in the contract, no deposit has been paid, and the biggest kick in the teeth - beneficiary started moving things in from the moment they said they'd definitely buy it (their reasoning was they needed to declutter their current home to place it on the market - but this was not discussed with all executors or beneficiaries) - and they had yet to make an offer (and offer was then rejected by at least 1 executor). An agreement was eventually reached by executors in regards to price. (again see info added at end of this part). (Fortunately, their house sold quickly - but their settlement is still a few weeks away)

    Many of the beneficiary's belongings have been moved in, locks have now been changed by the beneficiary (weeks before they were supposed to move in!!), and irreversible changes made to the property (eg existing curtains are thrown out, fence installed putting holes in concrete and house, plants pulled out and replaced). There has been no settlement yet!

    Could this be seen as a breach in the contract terms, and could this null and void it?

    Not all executors were aware this was happening, and, at least, half (maybe 2/3) of the beneficiaries weren't aware this would happen - they would never have agreed to it if asked, as they are still grieving.

    Also, it is my understanding the beneficiary is not paying any rent whilst they have 'moved in'. The estate is also paying the water, gas and electricity - beneficiary wants to wait for when their house settles as they said it's cheaper to transfer things over, rather than connect now.

    Background info:

    Initially beneficiary voiced that they were interested in purchasing family home, and they even bought items to use in future renovation and had a few real estates through the property to inspect, who each gave this beneficiary a ballpark figure for what property would sell in current market, and the beneficiary verbally conveys that to executors and other beneficiaries.

    The beneficiary then decides not to purchase (because the price is too high), so all agree to get the property ready to place on the market, and to start going through deceased belongings. This beneficiary is placed in charge of selling the property (ie assigning jobs to everyone to get property in good shape, organising real estate agent - but executors to be called in to sign actual documents when the time arises).

    Real estate is chosen (agreed upon by most beneficiaries as some know them personally) and is notified - and they indicate they have people who are after this type of place, and real estate agent suggests to get it on the market asap - ie that week. (there's not many like it in the area as it has some land, so could potentially be subdivided). The decision is made to wait a few months as everyone thinks they could get more if places are cleaned up more. As the place is getting ready, beneficiary mentions a number of times that their partner still wants to buy it. Beneficiary talks down the property, pointing out things that will reduce the price.

    A few months later, the day before contracts is to be signed with real estate agent, and a week before the house is due to have it's first open home, the beneficiary changes mind and wishes to purchase the property after all. Feelings with some beneficiaries are we've been taken for a ride (some put in days of physical work to prepare property), and also feel they might have been misleading in terms of what price the property should sell for.

    Most beneficiaries then meet and secretly write down what they wish for property to sell for to this beneficiary (note: beneficiaries can only go off on what this other beneficiary told them in regards to real estate valuations). No beneficiaries or executors have sighted any documents re: valuations when it was requested they name a price.

    Executors were supposed to then meet with the beneficiary to negotiate a price - never happened. Beneficiary manages to convince some executors that they should get it much cheaper as "it's staying in the family", but one executor stands their ground, and tries to arrange an independent valuation to try to gauge fair market price, as they believe by selling to this beneficiary, the terms of the will are not followed, because this beneficiary is not getting an equal share (ie is getting a higher share). Other executors say they are fine with this because the house is staying in the family. (beneficiary has plans to make major changes)

    It has been argued by some - that the land is worth a bit due to potential to subdivide - beneficiary says they don't plan to subdivide so shouldn't have to pay more for the land. (many other houses in the street have been subdivided. There is a new subdivision nearby and land is quite expensive for tiny blocks.

    The other issue that has arisen - it seems this beneficiary has decided that they owned it from the moment they said they would buy it. Family members are still grieving, and believed they would have some time left to say goodbye to the house - and have found it confronting to turn up to the house and find the family room filled with boxes and furniture from the beneficiary's house.

    Initially, all beneficiaries met at the same time to go through the personal belongings of the deceased estate - but since the beneficiary has decided to buy it, they and their partner have taken it upon themselves to remove some items as they couldn't wait to get everything out. It has been extremely confronting to turn up and see what they have been doing. A message was posted on facebook to let them know a family member was traveling up on the weekend to go through some things with everyone - hoping it would halt what was happening, but it seemed to encourage this beneficiary (or perhaps it was their spouse) to hasten with the clearing out.

    A beneficiary who traveled up, arrived in the driveway, to see the car of other beneficiary and their spouse's family member's cars - and couldn't face coming into the house. They would have been extremely upset if they had - furniture that was left was stacked up in 1 room, and other stuff had happened that was quite distressing.

    So, as this has ripped the family into 2 - what is the best course of action to try and 'fix' things. I understand that if the property is not sold at fair market value, and if the terms of the will aren't followed (ie split equally) - that action can be taken against the executors? Only one executor has acted fairly and they have half the family upset with them for doing so.

    They have not been able to go to the house for the last few months since arguments - same with the one that lives a few hours away. Essentially some beneficiaries have been robbed of the opportunity to have one last walk through the house, which is important for grieving.
  2. konichiwa

    konichiwa Member

    6 January 2016
    Likes Received:
    Part 2
    Just over 20 years ago, the deceased (from part one) set up a discretionary family trust, after their partner passed away, using assets left to them. (not a testamentary trust).

    They were given dodgy advice when they both wrote their wills (they should have been encouraged to create a testamentary trust as the person was terminal). They were given dodgy advice initially in regards to tax. Basically, the trust was used as a means to dodge tax - not sure if the deceased was being dodgy on their own, or if their accountant was involved (accountant didn't set up trust, and may not be aware the deceased was being dodgy as they came into it a year or so later).

    Basically, the deceased wrote themselves cheques, or wrote cheques to pay their living expenses - and it's been recorded as income disbursed to children and grandchildren. The 'beneficiaries' of the trust have not physically received most of this money, and they have never received a report to say what they have received (so many are unaware they have received income - vice versa, deceased has not been aware these beneficiaries might have received other income).

    If the trust were to be audited by the ATO, the paper trail would lead back to them - there has never been a payment to any of the beneficiary bank accounts.

    Now, I believe besides the recently deceased, there were another 2 trustees - which are 2 of the executors in part one. If the trust were to be audited, it could land them in trouble. So, now they are in a situation where they could be seen as doing the wrong thing in part one, and in part two. (I don't think they really understood their legal obligations in regards to the family trust - they were initially told they were needed to be a second signatory - don't think it was explained to them that they had obligations - they were young and naive).

    I am not sure what to do in either situation (part one or part two). Ideally, I'd like to warn the executors/trustees that they are potentially in a difficult position legally, so probably should tread carefully. I've been told by an outsider, if I mention anything, it might look like I am blackmailing them - but that is not my goal. If I stand back and say nothing, their actions could land them in more strife, so I guess I want to warn them so they can take precautions to protect themselves. I also want to warn them because I think it might help them act appropriately, and perhaps stop more damage happening with family relationships. (part one could have been avoided if they'd acted appropriately)

    Another thing, I stumbled across something today, in regards to the dodgy trust, but it stems from 20 years ago - but it has been carried forward every year, and can put some of the beneficiaries in a worse financial position than others (and it relates to money they never received in the first place).

    If they were to be audited - how far back does the ATO go? Most of the paperwork, trust income, financials and bank statements had been kept by the deceased.

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