24 Comments Wills, probate, letters of administration, powers of attorney
Thanks, this seems a common practice now days,as unfortunately i will need to contest as im the one still close to dad but unknown to me till recently ive found the will accidently, prior to his passing to find he has left 95% to his girlfriend and she her reply to me was well ill be left with nothing and your mum will leave u boys her estate, so i guess shes told him the same ,even though shes still married and he has a million dollar super payout,long story , but ill need to get a new will signed or contest under the same FPA if dad doesnt regain his health enough to revoke or re new his will which is what he wants to d o and cant remember this will mentioned????
These links may be of interest to anyone caught up in this stuff.
:EDITED: to make links clickable.
MartinO 2009-10-02 14:34:26
Thanks for the read from myself as well. After reading all of it, I find I am just as confused as everyone else is, including the magistrates. The whole idea of the F. P. A. is wrong in my opinion, because one could always contest a last will and testament if there was a need to. In some cases a moral need is used to contest and yet there is no provision for a moral contest, whilst in others, a financial reason is given, even though the contester is quite wealthy. The Act in itself is quite simple, and yet contesters and respondents need to have all sorts of legal aid, sometimes including Q.C.'s in some cases. As for magistrates knowing how the general public feel at this moment in time, well that is beyond me. I say this Act should be put before the general public of Australia in the form of a referendum, to see if we want it to remain or throw it out. Then we would all know how the public feel. My opinion is, that it would be thrown out.
hmm i guess it would depend on the public,s experience relating to the act,
I would be in favor but more pushing toward a tribunal prior to going to the "CASH COW" courts, This would help against gold diggers or similar. As in my experience i feel its my only resort and that,s with my living dads support.
I am reminded all day after reading the line, "anyone that shared a wheelie bin with the testator" or words to that effect. I feel that the Australian public should all be informed and asked to debate this act, and then have a referendum on it. One can pay around one thousand dollars to make a will and it is not even considered by some magistrates. I think shows that this legal document is not worth the paper it is written on, therefore, we can all find a way to exploit an inheritance, just for the fun of holding up the settlement.
but again, what is there to protect the "Close" family when the will maybe fraudulent or in a situation where the testator writes one as a bargaining chip to win a new wife and loses his capacity before he can change it back to the original and she doesn't complete the bargain at her end ,Then the family are left no where??
The lawyers from both sides should warn the plaintiff of the huge costs involved, and be specific about it, including the even more expensive losses should that happen. If the appelant still carries on with the contest, it goes before a Master, who will then make sure the plaintiff has a case or not. This is where my story is right now. Courts are not playgrounds, and a vexatious plaintiff will soon be discovered. The Master has a sort of final say before it goes into court, where three Supreme Court Judges decide the outcome. Can someone please correct me if I am wrong?
It can be a long drawn out stressful time. Be sure you are at least a little prepared for lost time and stress.
My story is different to the first post as I lived away from home town due to long term illness, work and needing to be near a major hospital, but I was home regularly and came back to live with my father too look after him and he died after 3 years. In court this appears on the surface to not be as strong as the beneficiary living in same town.
Our Father had called all children together to read his last will. When he died we found a new will had been written with one child the beneficiary of everything,
There was a clause that stated the rest of us were left out as we had been provided for in his lifetime
I must have been fortunate I got three opinions who weighed up the situation the documented evidence and the size of the estate and to court we went. The lawyer we chose has not wasted money in our case. In fact if we don't win neither he nor I will get any money, so for me that was a positive sign that I had more than a strong case.
Mediation was a farce in our case. I believe that is a major loophole in the system. At this stage if any party refuses to participate, co-operate or are obstructive, they should be made to pay for all cost from that point on out of their own pocket - not the estate. This would save a lot of money and save time.
But you can never judge the vindictiveness of the other party. When we hit court, after two days, and an agreement that there needed to be a redistribution of the estate, We were left hanging until the executor produces accurate estate books, as it looks like there is only half the value of the estate on paper compared to 3 years ago. In our legal system the judge doesn't have the authority or it is not his place to order the estate books be produced, he can request them but if the executor/beneficiary provides rubbish that doesn't make sense, no receipts etc. We have leave to request the judge to order the estate books with more cost.
I also believe from what was said that when a person 'vigorously fights' they are responsible for those added costs out of their own pocket not the estate, but again this appears at the judges discretion and the actions of the parties.
The beneficiary lied on the stand, most of which we can supply documentation to the judge as submissions along with anything else that is appropriate - but nothing can prove the closeness between my dad and I.
What was sad for me was in the court documents submitted to the court - that a POA was obtained 8 days before dads death and the signatures are shaky/wobbly and only is incomplete which explains why we are missing money and material objects, out of the estate.
So even when a case is cut and dried as in my case, and my lawyer is so confidant, he had to be as he will not get a cent as I have been on the disability pension since 1993, but I could still lose if the estate has been whittled away and there is no money to give me the house as promised and pay the legal costs as well.
So people be careful think long and hard, the money is not worth it, and you don't know what else you will find out which is more distressing - particularly if the evidence starts proving your father was manipulated and abused emotionally and financially, as there is not much you can do about that but try and live with that.
Makes one wonder at human nature - when did we become so self centered and selfish?
Your'e doing really well. I hope you don't mind a cheering squad. I realise my advise is nither here nor there but for whatever its worth, it is not a good idea to 'put down' the other party with whome you do not necessarily see eye to eye. Instead focus only on the positive aspects of the relationship. Follow through on your beleifs and not on their antagonistic, money grabbing greed. People like that tend to surely destroy themselves sooner or later.
Thanks for the input, it looks like I've sparked a good discussion.
If I may I'd like to clarify a few of my thoughts.
I have no issue with the lawyers milking the cash cow that's what they do ( the story of the frog & the scorpion comes to mind)
addison219 : I hope it works out for you. My situation is different in that the testator was under no undue influence and made a conscious and considered decision as to the distribution of his bounty as the courts say.
Rambler1 : poison is a great word to describe my family and it goes back generations. Hopefully the poison stops on this branch of the tree.
My situation will run its course but if I do nothing to change the law I'm as culpable as those who abuse it. I will soon be petitioning my local PM to having the law changed so as to give the courts more guidance as how this law should be directed. There is a place for the FPA but there is also a need for more testamentary freedom.
Here are some of the question I think the current application of the FPA raise.
Why does a person loose there rites because they are dead?
For how long is a child dependant on there parents 18, 21, 80 ???
Can the court decide moral duty with regard to adults or are we devoid of self responsibility?
What instrument can be used to resolve challenges to a will and save the state the estate the plaintiffs and the beneficiary time money grief ? I would suggest a tribunal for estates under $2million.
my uneducated answers as follows
1.Because i think we have a lasting memory of the person fixed on death and post death.
but they have no means to debate or explain their thoughts in detail if needed.
So what was done was as it is,in black and white, as seen through the living to interpret.
2.A Child is dependent on there parents whilst living in there home "i believe"
3. I still strongly believe that parents should be bound by law to a moral obligation to provide for all children they bring up under their guidance through life,at any age.
I also agree that they can leave gifts,small allowances to life companions, friends,carers etc, but a parent should always allow for a proper and adequate provision to their children, and be of a larger percentage of the estate.
4. Yes a tribunal should decide this and if not resolved then move into the courts
The judge did award the house to myself and the costs out of the estate.
The way things are progressing the other party could lose or have to mortgage their property to pay these costs as they are still being obstructive and taking very little notice of the judgement handed down.
I agree it would be lovely to focus on the positive aspects of the relationship - the only positive is that my father is at peace now.
The relationship with the said person is dead, with lots of sympathy for what we have all lost, the family split apart, and I truly believe that we reap what we sow, and it has been hard to be neutral for 2 years.
But the saga goes on, I think I did sugges that people stop and think long and hard before contesting a will, as you never know what the repercussions will be or how long they will last - in my case I had a brilliant lawyer, level headed also I was made well aware of the possible ramifactions so I was prepared for the worst - which was I would get the house and have to live next door - but at least now there is still a child living next door to our mother who can look out for her and if things get too bad she can live in the house in peace as she is 84 and deserves some peace after all these year.
When someone is intent on having their own way regardless of what the judge decrees, it makes it very difficult when threatening behaviour starts, needless to say there is now an IVO to have quiet enjoyment.
As for the comment "people like that tend to surely destroy themselves sooner or later" this is true and I am watching them unravel everytime the law pulls them up which is sad.
Well if nothing else I will learn a lot more patience - the long hard painful way.
After this experience, I definetly believe the system needs to be simplified and be less expensive and mediation needs to have the same powers as court hearings so that the system can not be abused. Also if there are no "real" grounds to contest or defend the will it shouldn't be able to be taken to court to waste money on a whim, revenge, greed etc. But I don't know how this can be accomplished.
Wish me well living next door and any of you who are prayers - I ask for prayers for our mother who really didn't deserve all this.
Blessings to all and thanks for the forum.
I have a question on POA's but will start a new post
Merry Christmas to all
Well after 20 months here is the outcome.
Settled out of court.
Sister 1 goes from 1% to 20% (no kids now no mortgage )
Sister 2 goes from 1% 20 5% ( no kids no worries )
Lawyers get 18% ( one more BMW on the road)
Brothers 1 and 2 go from 49% to 28.5%( 7 kids between 6 -21 and still carrying a mortgage )
This is considered a "good outcome"
In the next month or two I hope to get together a web site with resources to assist those that want to get this law changed.
It wonâ€™t change if politicians arenâ€™t forced to change it.
Did you ever get the website started as I believe I could add *interesting* information on FPAs and how they are currently being dealt with.
As I addressed to you in another part of the forum. My father and I had a house in joint tenancy.
When he died my wealthy brother in law on behalf of two half siblings (not his) launched FPAs.
These were accepted by the court. In the meantime because of threats to my children I agreed to settle. My father died i 2011. The house is empty and rundown but I have paid all council bills, water, insurance.
The brother in law is now attempting to break the agreement by stating the house must be sold at a higher price than independent valuation.
It is more about the fact that my half siblings (both who are extremely wealthy) had a massive issue with myself regarding the fact with my father's encouragement continued in education, worked in different parts of the world, and married a man the exact opposite of my half siblings (the brother in law belongs to the opus dei cult and one half sibling and he flagellate while praying).
As a result of both dysfunctional marriages (basically marrying money) they have become extremely obese and for some reason lawyers seem to be pandering to them.
In court I was basically told as I would looked well groomed and *healthy* while they are over 25 stone the judge would be sympathetic to them, despite their wealth