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NSW Will Fraud - Jail Time?

Discussion in 'Criminal Law Forum' started by les, 26 February 2015.

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  1. les

    les Member

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    Someone I know committed will fraud. Its about $20,000. What's the jail time they would receive?
     
  2. Tracy B

    Tracy B Well-Known Member

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    Hi Les,

    Without knowing much about what exactly this person did that constituted "will fraud", it is very difficult to say. Fraud in wills is usually a civil matter (e.g. leading to the setting aside the will as invalid and having the person who committed the fraud compensate the actual beneficiaries).

    The estate may report the person to the police and the police may decide to charge that person for fraud under the Crimes Act 1900 (NSW) s 192E. If this is made out, the maximum imprisonment term is 10 years. However, this would be reserved for serious white collar crimes where embezzlement of millions were concerned or many shareholders/clients were hurt as a result.

    Fraud in wills would unlikely be criminally charged because oftentimes, if the money is compensated back to the estate, the estate would not press criminal charges. Even if it is, it would be a lower sentence than 10 years (e.g. a fine and compensation to the victim beneficiaries, or some prison time instead of the fine if the money cannot be recovered or some other sentence that does not involve imprisonment).
     
  3. les

    les Member

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    The Fraud was this person was Executor of said will money was left in trust for others and said person took 20.000 of this and just spent it , ive asked on what and they cant remember as they were stressed and mentally unstable at the time due to the person who died and left the will , i know they have no money to repay but could do payment plan ,
     
  4. Tracy B

    Tracy B Well-Known Member

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    Hi Les,

    This does not really sound like fraud. It does appear to be mismanagement (or "maladministration") of the estate. The executor owes a fiduciary duty to all beneficiaries under the will to deal with the estate assets properly and according to will instructions. If the executor acts contrary to the interests of the beneficiaries (e.g. for personal gain), then there is an action in breach of fiduciary duty and if proved, the executor will be personally liable to make good the amount lost or account for any gains/profits made or tracing could be done to recover the lost amount.

    If judgment is made, an enforcement order can be sought and there will be ways to recover the amount: e.g. in one go, periodically through payment plans, charges over personal/land assets, or directly to the debtors of the executor, or settlement via some other method.
     

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