Australia's leading provider of affordable DIY legal kits
Call our Customer Care Specialists on 1300 728 200
   

Legal Forum

Welcome to the FREE AussieLegal Forum

This FREE legal forum is supported by participating lawfirms in your local area.
The information contained in this public forum, and any comments made by the administrators, it's appointed mediators, or members of the public are of a general nature and may not be regarded as financial or legal advice in any way. We recommend that you seek formal advice from a practicing solicitor or licensed financial advisor regarding your particular situation. By registering to use this forum you meet the above criteria and agree to abide by all of the above rules and policies.

To be sure we provide you with the most relevant information to your state, please let us know which state you your legal matter resides in:

ACT  NSW  NT  QLD  SA  TAS  VIC  WA  

AussieLegal recommends this law firm:

  FAQ FAQ  Forum Search   Register Register  Login Login

Estranged daughter who disowned her mother is back

 Post Reply Post Reply
Author
  Topic Search Topic Search  Topic Options Topic Options
Juan_Antonio View Drop Down
Newbie
Newbie
Avatar

Joined: 31/July/2018
Location: Australia
Posts: 3
  Quote Juan_Antonio Quote  Post ReplyReply Direct Link To This Post Topic: Estranged daughter who disowned her mother is back
    Posted: 01/August/2018 at 00:51
Hello forum,

My mum and i are in need of some assistance here as this is new territory. My overarching question is, does the estranged daughter have any right to her mum's assets? There are some extenuating circumstances, so please allow me to elaborate.

**warning: long post**

(A few things to note before i go into detail: I'm not that familiar with legal terminology, so if you could talk in lay terms (if practical to do so) that would be appreciated. Below I will be providing as much information as possible, but i appreciate that some of it may not be pertinent -- I'll err on the side of caution and over-provide).

KEY POINTS:

    -- My 80 yo auntie (my godmother & my late father's sister) passed away 2 weeks ago with the following assets: a $1.5m house (her primary place of residence) and a $100K bank balance; and no debt or loans of any kind.

    -- My auntie leaves behind a 50 yo disabled daughter, and another daughter (51) who has been estranged from the family for the past 30 years.

    -- My auntie was her daughter's full time carer (24/7).

    -- My cousin has encephalitis, which she got at the age of 15; it almost took her life, she went into a coma for several weeks where doctors said she wouldnt survive it. Fortunately she woke up, but not without very severe brain damage. She essentially has the mind of an 8 year old (very) mischievous child -- ie. she lies, steals, overeats, defecates herself, runs away, says wild things in the company of strangers and needs to be watched at all times.
         
    -- She is now in mine and my mum's care; we are living in her home looking after her full time.

    -- Her mum left all the assets to her daughter, making mum and i the trustees and executors of the Will.

    -- Since my auntie wrote her Will 2 years ago, her wishes were for her daughter NOT to be put into a home of any sort upon her death; her wishes were for her daughter to stay with her family (my cousin only has me and my mum); these were my auntie's dying wishes which i gave my word i would honour

    -- Her estranged daughter has come back into the fold upon learning of her mother's death;

    -- Her estranged daughter abandoned her mother after her father passed away, because her mother needed help looking after her disabled daughter and wanted her other daughter to take some responsibility; she refused to and subsequently distanced herself from her mother

    -- Without going into detail, her estranged daughter was a nightmare to deal with and is the cause of my auntie's heartbreak for the past 30 odd years.

    -- It is well known - among family and friends - the horrible things that the estranged daughter did and said to her mother in the few times they were in contact over the years.

    -- Ever since her younger sister became ill, she has resented her, resented her parents for showing their disabled daughter more attention and more care; her contempt towards her family originates here.
         
    -- The reality is the she disowned her mother and sister and wanted nothing to do with the both of them (she stated explicitly stated this numerous times over the years), even when she knew her mother's health was deteriorating.

    -- In the last few days of her death, i asked my auntie if she wanted me to reach out to her daughter (despite everything that had occured, i didnt wanted to stand in the way of a possible reconciliation between a mother and daughter), she said 'no, what for? She knows i've been unwell, she said she wanted nothing to do with me'.

    -- My auntie knew that there would a high risk that she would contest the Will in order to take some of the share away from her disabled daughter; she warned me of this and told me to be vigilant and on guard. Well, now the day has come and i would like to know how i can protect my cousin and ensure she doesnt get taken advantage of.

    -- Whilst the estranged daughter hasn't expressed any intention to contest the Will, its obvious to everyone that this is the reason she has returned. I would like to be prepared as best i can.
My understanding, based on what my auntie told me, based on the way the Will is written, is that her estranged daughter has no rights to the assets. She is precluded because her sister has a disability and needs 24 hour care.

My understanding is that if her daughter didn't have a disability, then ordinarily she would've had a rightful claim to the assets. We have always been a close family. My dad and auntie were very close and he was always there to support her. When my dad passed away a couple of years ago, i was the one that was left 'in charge'. I supported my auntie and my cousin whereever possible (these were also my father's dying wishes to me, which i have honored and will continue to honour as long as my cousin is alive).

My mum and i love my cousin very much and we'd like to stay together as a family, living in my cousin's home. We've established a system that allows me to work from home and my mum to get some reprieve from to time. We share the workload. This home has sentimental value to everyone in it, as it is the home my cousin was born in, and the second home i grew up in. My auntie never wanted to sell it because of this. And she didn't want her daughter to be split up from the family, by having her be placed into a home. My mum and i do not want to do this as well, and we will do everything in our power to prevent her from being 'sent away'.

MY CONCERNS / QUESTIONS FOR THE FORUM:

    -- Does her estranged daughter have any rights to the assets?

    -- If she does, can she force the sale of the house and put my cousin in a home, against her will, as well against mine and my mum's will?

    -- My sister and i were discussing this last night. My sister, playing devil's advocate, seems to think that the courts could grant permission to the estranged daughter to sell the home in order to unlock its value. Then in turn, splitting the funds between the daughters appropriately, resulting in / forcing my cousin to be put into a home. This doesn't sound intuitive to me. Why would a court split up a family and remove someone from their home? We dont want her to go anywhere, nor does she. Is this possibility conceivable? To be honest, this possibility never occurred to me for the reasons stated above. So when i asked my sister why she thought this was a possibility, she told me because our cousin staying in a 3 bedroom $1.5m home could be deemed excessive or 'over-the-top', and she could easily stay in an apartment half the size (and half the value) of the current house and still be taken care in the same manner. Is there any truth in this?

Looking forward to hearing people's opinion's on the matter.

FYI, below is a copy of my auntie's will:


Edited by Juan_Antonio - 01/August/2018 at 01:05

citizen-joe View Drop Down
Senior Member
Senior Member


Joined: 09/October/2005
Location: Australia
Posts: 646
  Quote citizen-joe Quote  Post ReplyReply Direct Link To This Post Posted: 01/August/2018 at 07:25
Nothing to stop the estranged daughter from making a claim against the estate.

However as the estate has been left to benefit a disabled adult child, who was cared for by the testator during her lifetime the chance of her succeeding is almost nil.

One point, who were the witnesses to the will? If yourself and your mother, you have a problem. A witness to a will cannot benefit in any way. The estranged daughter would likely be able to make a successful claim to anything you and your mother were to receive.

Answers to your other questions are hypothetical and you should engage a skilled solicitor should any challenge be made.

Edited by citizen-joe - 01/August/2018 at 07:26

Juan_Antonio View Drop Down
Newbie
Newbie
Avatar

Joined: 31/July/2018
Location: Australia
Posts: 3
  Quote Juan_Antonio Quote  Post ReplyReply Direct Link To This Post Posted: 01/August/2018 at 12:56
Thank you CJ

yes i see your point about who the witnesses were.

They were not my mother or i, they were two lawyers of the firm who put that document together for my auntie

goingbonkers View Drop Down
Senior Member
Senior Member
Avatar

Joined: 11/September/2009
Location: Australia
Posts: 755
  Quote goingbonkers Quote  Post ReplyReply Direct Link To This Post Posted: 03/August/2018 at 10:22
One thing I didn't see is the financial position of the estranged daughter.
Although she has a claim, it is a small one butthe cost of defense could be large.
If the estranged daughter is in a bad financial position(doesn't matter why drugs/gambling etc) and has health issue (you'd be amazed how poorly one gets when a will dispute starts).
It could be cheaper to pay her off with 100/150K rather than roll the dice with the court IF she claims.
The judge will likely ignore your Will, and give your savings to whoever they think should have it'http://changefpa.com.au

Eddy View Drop Down
Senior Member
Senior Member


Joined: 14/December/2012
Location: Australia
Posts: 179
  Quote Eddy Quote  Post ReplyReply Direct Link To This Post Posted: 03/August/2018 at 13:23
In response to one of your fears about the house being sold and the cousin going into a home -

Assuming the estranged sister was successful in making part claim on the house, it's unlikely that a sale would be forced "to unlock the value" as part of distribution of the assets of the estate - the beneficiaries would need to agreed to doing this. The disabled niece may need to have an attorney appointed (POA), if she can't make appriopriate financial decisions and doesn't already have one. You might want to arrange POA ASAP if there is none currently.

Juan_Antonio View Drop Down
Newbie
Newbie
Avatar

Joined: 31/July/2018
Location: Australia
Posts: 3
  Quote Juan_Antonio Quote  Post ReplyReply Direct Link To This Post Posted: 03/August/2018 at 15:46
thank you for your replies

both my mum and i are her POA,, as she indeed cannot make sound financial decisions on her own

Edited by Juan_Antonio - 03/August/2018 at 19:04

 Post Reply Post Reply

Forum Jump Forum Permissions View Drop Down

Want to save money?

Check out our list of do-it-yourself legal kits.

Need formal advice?

Let us help you find a lawyer who specializes in your particular area of law.

Need further information?

Visit our legal forum where you can ask questions and search for similar topics.