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WA Will with Public Trustee - Issue with Brother's Inheritance?

Discussion in 'Wills and Estate Planning Law Forum' started by Lally, 12 July 2015.

  1. Lally

    Lally Active Member

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    My mother died in April 2013 and had made a will with the Public trustees in which a lesser portion of her estate was left to my older brother and my remaining 3 siblings and I received equal shares but a significantly larger portion than my brother. She had a good relationships with all of us but did not outline her reasons for leaving my older brother a smaller portion in her will. I am not sure why she wasn't advised to do this by the public trustees at the time she made her will .

    My older brother, who received the smaller portion has a severe intellectual disability and is in receipt of a pension and accommodation support from Dept of Disability services. She consulted with his accommodation managers while she was alive and was always of the understanding that my older brother would continue to have his needs provided for by the Dept. I have recently been assured by DDS that this is still the case and his current pension and accommodation support is more than adequate to cover his needs, and provision will be made for him until the time of his death;

    Mum's estate was finalised in October 2014 and myself and three younger siblings received our inheritance and my older brother's smaller inheritance was to be held in trust by the Public Trustees to meet the cost of any unforeseen expenses my older brother might incur.

    In February 2015 I received a letter from the Public Trustees Private administrators support team: The letter said ..." a number of matters have been identified by the Public Trustees Private administrators support team concerning the distribution of our mothers estate, which may require investigation. These matters relate to whether or not your mother made adequate provision for (brother's Name) in her will." The letter continued.
    " This also raises the question as to who is in the best position to investigate this issue. It mat appear that as a beneficiary of your mother's estate, and as a decision maker for (Brother's Name) that you maybe in a conflict of interest regarding this issue, especially if (brother) has a right to make an 'Inheritance Act Claim' contending that his mother failed to make adequate provision for his needs. It might be felt that you have a 'conflict of interest' in respect of these matters.

    The matter was brought before a State Administrative Tribunal in May 2015 and a decision was made that an investigation would be made at my brothers expense.

    My siblings and I opposed this of course. Firstly because we know that our bother's needs are currently well met. Secondly because we can see little point in wasting what money he does have on unnecessary investigations, thirdly because we don't know how fair the investigation will be if it is run by people who have no knowledge or understanding of my mother's reasoning, my brothers disability and needs, the financial needs and responsibilities of my self and other siblings. Fourthly because the Public Trustees are running the investigation and they have a vested interest in procuring more money for my brother as they charge fees on money they keep in trust for him and it is creating work for them to do.

    In July 2015 I received another letter from the Public Trustee requesting that I release $ 2000 to allow this investigation to proceed. I haven't sought legal advice so far and am wondering if I should or if this would prove more costly than letting the investigation take its course.
     
  2. winston wolf

    winston wolf Well-Known Member

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    Hi Lally

    Just want to clarify a few points.
    Who is you brothers legal guardian?
    Who is the executor of the will?
    The estate is fully distributed but you hold you brother share as his guardian or as the executor?
     
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  3. Lally

    Lally Active Member

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    My Two younger sisters share guardianship of my brother. The Public Trustees were executors of the will. The Estate is fully distributed and the trustees hold my brothers share. Myself and my other brother are plenary administrators.
     
  4. Pete Evans

    Pete Evans Well-Known Member

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    I'm not qualified to answer any questions re this matter BUT BUT BUT ,surely this is a case of complete ignorance from regulators ?
    The executor who has distributed all monies is now paranoid about being sued [or so it seems ] so he is turning it back to the benfics. who have power of attorney over a brother who may have no idea about what is happening . If they are so paranoid that someone is going to sue them why not get the benefics. to sign a deed of release on behalf of the brother saying NO one is going to sue the executor or the manager of the disabled brothers trust ?
    Could also be a case of lawyers trying to milk those with money and they should of had the freakin brains to think about this before the executor [THEM ] handed over the cash to the benefics. in the first place .
    unreal .
    sorry over my legal rant for the day .lol and good luck but in my view give them nuffin and treat all lawyers with the contempt they deserve as most are just looking for work and trying to cover their own backsides and in this case trying to cover their own backsides after screwing up !
     
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  5. winston wolf

    winston wolf Well-Known Member

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    You have a very complicated situation on you hands.
    It is not uncommon for the guardian of someone disabled to claim for further provision from an estate. This is especially true if it is a public guardian.
    This normally all happens prior to distribution but the WA FPA does make provision for this. See below.
    It should be done within 6 months of probate but can be extended by the court is you can show a good reason.

    8.Orders after distribution of estate

    (1)On an application for an order under this Act, the Court may make an order under section 65 of the Trustees Act 1962, in lieu of an order under this Act, in any case where the estate of the deceased, or part thereof, has been distributed among the persons entitled under the will or intestacy.

    (2)Where the Court, in exercise of the power conferred by subsection (1), makes an order under section 65 of the Trustees Act 1962, it shall have the same powers in respect of that order as it has in respect of an order made under this Act.

    I don't see why the public trustee is investigating as they are the executors not your brothers guardian, or who they intend to bring the claim as the guardians I assume don't want to make the claim.

    I would definitely get legal advice because of the complexities and possible conflict of interest.

    Let me confirm that you and your brother are plenary administrators of you older brothers share of the estate but your two younger sisters are his guardian.

    I would like to see some input from fellow contributors as this is a curly one!?
     
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  6. Lally

    Lally Active Member

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    Hello Winston,
    Thanks for your reply and the thought you have given to this case. Yes it certainly feels curly. You are correct. My younger brother and I share plenary administration and my two sisters share guardianship.
     
  7. Lally

    Lally Active Member

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