Transferring Assets before Death - Ex-Husband Disputing Will

salmon90 on 24/06/2019 - 15:24
Last edited 24/06/2019 - 15:52 by 1 other user

My sister in law passed away from cancer 5 years ago (in her 30's).
Prior to her death, she moved back in with her mum and started transferring money from her accounts to her mothers bank account and she also got a life insurance payout about 6 months before she passed which was transferred to her mother.

The money was transferred to her mum to help pay for expenses but also because she didn't want her Ex-husband getting any of the money. Her daughter was listed as the sole beneficiary of her estate in the will, however there was a question mark as to whether the ex-husband was fit to take custody of the child or not.

At the time of her death, she had no money in the bank and she had no other assets, except for a car that was leased, which shortly after her death got written off and the insurance money paid off the loan, nothing to spare.

There was a court battle where the child was eventually put in the custody of her father (the ex-husband) after a number of conditions were met. Now 5 years down the track on the anniversary of her death, he has sent court papers to the mother demanding a copy of the will and full account of the estate finances on and before her death.

Legally I know he is entitled to the will as the guardian of a minor who was the beneficiary in the will, but is there any rules about the assets or money in bank accounts being transferred out prior to her death being considered part of the estate which he may now get a hold of?

She doesn't have the finances to pay for a lawyer.

Any help would be greatly appreciated.

Financial

Comments

  • [Deactivated] on 24/06/2019 - 15:38
    +2

    Without knowing too much about the situation do you think it is unreasonable for the carer of the child to ask if there was any money and that he should have it to help cover the costs of raising the child?

    • salmon90 on 24/06/2019 - 15:51

      I think it is fair for him to ask for a copy of the will and if there was any money.
      However there is a little bit of background there, AVO's etc and the sister in law wanted to make sure that the money was never to the benefit of the ex husband, that is one of the reasons why she transferred it.
      There was a separate trust fund setup for the care, maintenance and education of the child which is controlled by the grandmother, however the father refuses to submit receipts to claim expenses from it. (I know when people see trustfund, they think rich b*tch… But this was actually a public fundraising fund).

      For me it is more the case that the sister in laws intention at the time was for the money transferred to her mum to be for her mum, and the trust fund to be for the child.

      My question is more related to the assets transferred out of her accounts by her in full mental capacity, prior to her death, and if those assets can be in anyway shape of form be considered assets for the purpose of the estate.

      • [Deactivated] on 24/06/2019 - 17:07
        +2

        I don't know the answer to your questions.

        If I may offer some more advice, sounds like there is a lot animosity all round and you should all find a way to put it aside and work in the best interest of the child.

        The father clearly loves his daughter if he fought for her in court. People can change a lot in 5 years, perhaps you should try and have a relationship with the father so that the daughter could benefit from having extended family in her life. Assuming the daughter is fed, clothed and going to school do you really need to make him come up with receipts. It feels like the daughter is the one getting hurt by this.

        Just my thoughts coming from a complex financial family situation, good luck.

        • salmon90 on 24/06/2019 - 17:35
          +1

          This side has tried to mediate multiple times to no resolve. The reason for receipts is because the money is coming out of the trust, which means the trustee (person who distributes money) is bound by the terms of the trust and must be able to justify and explain expenditure associated with the trust, and be bound within the guidelines and allowed withdrawal types from the trust agreement.

        • [Deactivated] on 24/06/2019 - 18:23
          +15

          This

          if he fought for her in court.

          does not necessarily equal to he loves her.

        • Love a bargain on 25/06/2019 - 13:16
          +2

          fighting for custody of kids are often used by estranged parents as a mean of obtaining financial gain

  • Andrew 1 on 24/06/2019 - 15:49

    Some general information that may be of use (not advice)

    Unclear what state you are in but have a read of this (it's prepared by a law firm to try and drum up business but may contain relevant information for you if you are in NSW): https://www.diamondconway.com.au/disposing-of-your-assets-be…. Suggests that yes if a family provision order could be granted then the court can make the order over property gifted to another.

    BUT this separate set of info suggests that they would have had 12 mths from time of death to make such a claim: "If you are an eligible person and you think you are entitled to make a claim on the deceased estate, you should get legal advice. Your application must be made to court within 12 months from the date of the deceased's death." (http://www.lawaccess.nsw.gov.au/Pages/representing/after_som…) Unclear if they can get an extension on that time period.

    That said legal aid/a community legal centre may be able to give you some advice see above link.

  • robbyjones on 24/06/2019 - 16:01
    +3

    Comply with the conditions of the court order, no more, no less. Do not try to hide anything but also no need to disclose what is not asked for. I know it is hard but try to treat it unemotionally

    • salmon90 on 24/06/2019 - 16:04

      I am here as the unemotional third party trying to be the voice of reason… I have no predjudice so nothing anyone says can upset or offend me. Just looking for honest advice.

      Having said that, what she has received isn't a court order, it was a filing to the courts sent from the ex-husbands lawyer, asking for a response before the court hearing.

      How do you know what can and can't legally be asked?

      • robbyjones on 24/06/2019 - 16:08
        +4

        I think you need proper legal advice. If you don't have the funds seek legal aid.

  • crashloaded on 24/06/2019 - 16:03
    +11

    I'll represent you in court for $49/day and throw in a google home mini.

    • geech on 24/06/2019 - 16:31
      +1

      Do you do pro bono work representing people trying to get out of speeding fines? And if so, when do I get the home mini?

      • crashloaded on 24/06/2019 - 17:25
        +4

        Yes I just need you to provide your Ms paint diagram for me to submit as evidence. Once I lose the case, your Google home mini will be posted.

    • tallkid123 on 01/07/2019 - 08:45

      Smart man.

      Outsource the legal defence to Siri and spend your time hitting F5 on Ozbargain for the next Maccas App deal.

  • Ughhh on 24/06/2019 - 16:25
    +1

    If you take this seriously and want to win, see a lawyer. You don't want an armchair lawyer guessing and providing bad advice that could make your situation worse.

  • sparkles on 24/06/2019 - 16:48
    +3

    Wow, after five years you would think this would be all settled and done. A lesson for us all: never underestimate the greed that will emerge from the woodwork when someone dies.

    My amateur opinion: if your sister-in-law was of sound mind when she transferred assets to her mother in the lead up to her death, he's really chasing nothing. He would need to prove duress or fraud or not-of-sound-mind. What sort of dollar figures are in question to justify this action five years later?

    Who was the executor of the will? Given that there weren't any major financial assets remaining in her name, was probate even granted?

    • qwerty on 24/06/2019 - 16:54

      It sounds like it was a long court battle regarding the kid

      Its not as if he just hid for 5 years and brought it up

    • salmon90 on 24/06/2019 - 17:37

      The daughters grandmother was the executor of the will. No probate was performed due to the almost $0 value of the estate. My Concern isn't the money or assets after this died, but the assets transferred before she died.

  • TheMindsetTraveller on 24/06/2019 - 17:53
    +2

    5 years has passed, the statute of limitations would have kicked in for any claim upon an estate.

    if the papers are of legal nature and the person who has been served it wants advice, i would make an appointment with legal aid or speak to one of many estate lawyers who may offer a first appointment free.

    • Typical16-bitEnjoyer on 26/06/2019 - 09:19
      +2

      statute of limitations would have kicked in

      That's not technically true. Out of time applications are actually fairly common.

      The time frame (which differs) actually refers to indemnity for beneficiaries to receive their distribution and spend it. NOT a time limit to make a claim.

      This isn't a fresh claim nor a family provision claim. The father has custody and acting on behalf of the beneficiary who is underage.

      The grandmother IS required to provide proof of all assets and what happened with them. If she doesn't provide now the Supreme Court definitely will demand them.

      There was a life insurance payout. Alarm bells.

      There is a trust. There's only one beneficiary. That beneficiary can demand the trust be wound up and distributed. Alarm bells.

      OP for the love of god seek legal advice. If you're in VIC please see an accredited specialist in Wills & Estates pronto: https://www.liv.asn.au/Specialists.aspx
      You want to snip this in the bud before it escalates.

      • TheMindsetTraveller on 26/06/2019 - 10:32

        Of course out of time applications are fairly common, and a whole range of considerations that you correctly identify.

        Hence best to seek legal advice as suggested rather than get 'advice' from those on OB whether or not they may or may not be solicitors.

  • garetz on 24/06/2019 - 17:54
    -5

    She can do whatever she wanted with her money before her death, there wont be anything to dispute, however there is a tax free threshold of 10k for gifts, so if there was more than 10k given there might be a tax obligation payable.

  • Seraphin7 on 24/06/2019 - 18:05
    +1

    I know you've stated the grandmother(?) doesn't have the finances to engage a lawyer, but really funds or some other mechanism must be found. On the assumption that the father has engaged lawyers (or will), here's how it will roll …

    1. Father demands information per court orders (current situation).
    2. Either the information is not provided, or the father is unhappy with what is provided (the latter being likely in any case).
    3. The father instructs his lawyer to draw up a an "appropriate legal instrument" making certain demands of the grandmother.
    4. The grandmother is unable to meet these demands/believes they are unreasonable.
    5. The father instructs the lawyer to draw up a formal "letter of demand" (or similar).
    6. The grandmother is unable/unwilling to comply with the letter of demand.
    7. The father instructs the lawyer to initial relevant court proceedings.

    … or something along those lines anyway.

    The point is, the probabilities are this thing will escalate quickly. The relevant people need to address this proactively, not just bat the father off/hope he goes away.

  • Youfah Mizzum on 24/06/2019 - 18:25
    +1

    I think Seraphin is likely correct.
    If the assets were transferred to the grandmother,and there is no disputing the mothers soundness of mind then the assets are not the mothers any more - they are the grandmothers.
    The father could possibly dispute the soundness of mind.

    Really, I know the grandmother has no funds for legals, but she needs to get proper legal advice not on this forum.
    See Drunks advice - go to LegalAid or avail yourself of the first appt free at many offices. Sometimes the local council or other community facility has legal advice for those on lower incomes.

  • shaybisc on 24/06/2019 - 19:10
    +2

    Get your thick heads together around a table and do what is best for the child.

    How much have you all already spent on lawyers?

    • salmon90 on 24/06/2019 - 19:32
      +1

      All i can say is agreed and i wish it was that easy

  • Skramit on 24/06/2019 - 19:22
    +1

    Putting the emotion to one side, IMO if the father is caring for the child he has a right to the appropriate funding to care for the child. Sounds like it was withheld by the grandmother.

    If the mother pulled a swifty just before her death to restrict this funding out of spite for the ex husband rather than the best interests of the child, then the father may well have a case. It sounds like he has had similar advice from a lawyer.

  • chumlee on 24/06/2019 - 20:00

    Seems like there's no assets to be able to contest a will

  • Masterpupil on 24/06/2019 - 22:29
    +3

    You need to take this to a wills & estate lawyer. Family needs to fund it, whatever it takes. It might cost a couple of grand to get proper advise, but it would be worth it. The worst thing is when something like this blows up when a lawyer involved early one may have brought it to a swift ending.

    Generally in most states there is a period of limitation. Probate law varies from State to State and is fairly complex and difficult to understand.

    What interests me is that all this money was transferred, but there are no funds available to pay for some proper legal advice.

    Do not go to Legal Aid. They do not practice any estates law. They will have no idea. You might strike it lucky with a CLC if they have a volunteer that practices in estates.

    Best case scenario, if the family is completely unable to fund, some of the big firms run pro-bono programs.

  • JimmyF on 24/06/2019 - 23:25
    +3

    The money was transferred to her mum to help pay for expenses but also because she didn't want her Ex-husband getting any of the money.

    How much are we talking here?

    $5k? $50k? $500k?

    The answer to this is key to the course of action you're going to take.

  • [Deactivated] on 25/06/2019 - 01:11

    So you are the brother of the father of the child. But it does sound like your brother is entitled to the insurance money if the child is under age knowing it must go to the child later. Cough, cough.

    • Lunarboogie on 25/06/2019 - 09:12

      I assumed OP is the husband of the deceased woman's sister. Either way, the family connection is vague and could be clarified.

    • salmon90 on 25/06/2019 - 09:09

      Thank you for this reply, you mentioned a few things that are definitely something for me to look into.

      Good luck with your situation.

  • orangetrain on 25/06/2019 - 08:30
    +2

    What did they say when you asked the child what it wants?

  • Never Pay RRP on 25/06/2019 - 09:48

    put in the custody of her father (the ex-husband) after a number of conditions were met

    Was one of the conditions the financial capacity to raise a child?
    Quite sad that he is coming back for more money. Wish your family all the best

  • ozbjunkie on 25/06/2019 - 13:42
    +1

    I have a bit of knowledge in this domain, but confirm the following.

    A number of parties (relatives, carers, dependents) can contest a will under the family provision act / succession Act, where claims are based on "need" and "maintenance and advancement in life".

    These claims are supposed to be made within 12 months of probate, but are very often given extentions of time (way too liberally in my opinion). This means that the ex-husband could make a claim in the supreme Court.

    When contesting a will, the executor and anybody initiating a claim may have their costs paid from the estate. In rare circumstances and for greedy/spurious claims, the court may order claimants to pay their own costs.

    There are "clawback" provisions, where anything transferred within 3 years prior to the date of death may be considered to be part of the estate to be distributed according to the will.

    This means that yes, ex-husband can claim, for free, and the estate will include the assets held by the mother.

    Unfortunately, you can't trust that your will would be respected in Australia. Much to the frustration of myself and now you.

    • Typical16-bitEnjoyer on 26/06/2019 - 09:27

      I'm not reading OP's post like that at all. The father has no claim.

      Sounds like the father intends to use the beneficiary (the daughter), who is underage, to challenge the executor. The claim likely consist of accusing the executor of not performing their duties and not distributing all assets to the beneficiary (the daughter). He had custody now. He can do this. He wants the trust.

      OP needs legal advice pronto.

      • ozbjunkie on 26/06/2019 - 14:48

        I assumed they the will had been dealt with properly, but yes if the executor failed to distribute assets correctly, phoar… God help them if it seems to the judge it was intentional.

        Yes OP needs legal advice. He might want the trust. Or might not. But the facts of the matter are as I explained above. Once the will is contested it's not just the trust that is up for grabs, because of the clawback of assets gifted within 3 years of death. You can't contest part of a will, it's all or none. He is going towards the path of all. His claim will be very strong as there is a minor involved, a child of the deceased, who has greater need than the mother in law.

        • Typical16-bitEnjoyer on 26/06/2019 - 16:42

          But the facts of the matter are as I explained above.

          Not really, but I can see your post was given with good intentions.

          You can't contest part of a will, it's all or none

          You can. From the limited facts the granddaughter is the only beneficiary. They won't be contested the will. They'll be contesting the administration of the estate by the grandmother.

          His claim will be very strong

          Nobody knows that. But it is serious that OP needs to obtain legal advice for the parties now.

          • ozbjunkie on 26/06/2019 - 17:18
            -1

            @Typical16-bitEnjoyer: Basically anyone who is family can contest a will. Including the father of the deceased's child. You're wrong.

            His claim is likely strong, a child has many more years ahead of her than the grandmother, that means greater need. Unless she has 90% of the assets including monies gifted before death already, but since the father is looking into the will I think it's safe to assume that's not the case.

            The facts of law are exactly as I explained above, which claim is incorrect?

            PS how many supreme Court judgements have you read regarding contesting wills? More than 0?

            • Typical16-bitEnjoyer on 26/06/2019 - 18:12
              -1

              @ozbjunkie:

              Including the father of the deceased's child.

              You do realise the effect of divorce on a will. Right? Riiight?

              His claim is likely strong

              Are we even talking about the same thing? His claim or the daughter's claim?

              He has zero claim. There was a divorce. As long as the deceased did not provide him a regular stream of money as a means to survive, which usually doesn't happen after a divorce, he hasn't a chance in hell.

              The daughter is the sole beneficiary. The father now has custody. Why would they dispute the will?

              The daughter gets it all.

              They'll be happy with that.

              There's literally nothing to challenge.

              What they're likely not happy with is where the life insurance went, and what did or did not go into the trust.

              that means greater need.

              Not even relevant, the daughter IS the beneficiary :D

              AGAIN, his likely angle is to challenge the administration of the estate, ie. where the money went and to whom, wind up the trust, or both, as only the grandmother handled this and no probate was applied for, so no records likely exist nor provided to the daughter and/or guardian at that time.

              PS play the ball, not the man.

              PPS more than you.

              • ozbjunkie on 26/06/2019 - 20:45

                @Typical16-bitEnjoyer: Op stated "Prior to her death, she moved back in with her mum and started transferring money from her accounts to her mothers bank account"

                If this was within 3 years before death, it can be subject to clawback and be considered part of the estate. Do you dispute this?

                Here's some light reading for you from the first website when I googled it for you.

                "Clawback provisions
                The Court can designate property as notional estate by nullifying any transfer of assets made by the deceased with the intention of defeating a family provision claim. The Court’s power over notional estate is so wide that it can even make orders because the deceased failed to transfer assets.

                Examples of an act or a failure to act include:

                failing to sever a joint tenancy;
                nominating someone other than the executor/administrator to receive a life insurance payment…"

                The op also states money was transferred to the mother as "she didn't want her Ex-husband getting any of the money." This is one of the things the clawback provisions are intended to address.

                And here's some more on ex spouses

                "Ex Wife Ex Husband
                The Succession Act 2006 provides that a former wife or husband of the deceased person is eligible to commence proceedings seeking an order for provision, or further provision, from the estate of the deceased person."

                So, without an answer I'll have to assume the answer to my question was indeed 0.

                • ozbjunkie on 28/06/2019 - 04:09

                  @ozbjunkie: Funny how people disappear rather than admit they were wrong, or come up with a tenable counter argument. Funny weird, not funny amusing.

                    • ozbjunkie on 29/06/2019 - 18:26

                      @Hector: Oh I feel better now. Amazing music for taking a long tut.

                • Typical16-bitEnjoyer on 01/07/2019 - 08:42

                  @ozbjunkie: Some of us have more pressing things in life than to respond to you. Had to go away for a few days for work, but here I am!

                  it can be subject to clawback and be considered part of the estate. Do you dispute this?

                  Straw man. I never said that. You say the father has a claim. He doesn't. I note you've completely dropped that point of view now.

                  "You do realise the effect of divorce on a will. Right? Riiight?"

                  So did you find out the answer to the above?

                  Any claw back will relate to the daughter.

                  The op also states money was transferred to the mother as "she didn't want her Ex-husband getting any of the money." This is one of the things the clawback provisions are intended to address.

                  The "mother" (grandmother) was the executor. Did you miss that part?

                  seeking an order for provision, or further provision,

                  Did you even read my post? I already addressed this. Unless the deceased was giving financial help on a regular systematic basis for the purposes of the ex husbands living expenses, there's no chance. The threshold is extremely high. You can't just drop in a random reference to an Act without citing how it is relevant.

                  So what is it you were right about again? Won't be replying further as it's clear you have no idea and are just googling random provisions to attempt to help your argument (hint - don't)

                  • ozbjunkie on 01/07/2019 - 09:31
                    -1

                    @Typical16-bitEnjoyer: I still claim the ex husband has a claim. It may be denied, but the husband can still claim. The fact that he and the deceased share a dependent strengthens his claim. I don't know how you came to the understanding that "I have dropped the point of view that the husband has a claim" when I quote a passage specifically addressing the husband's claim in my previous post to you.

                    Glad you now agree that clawback provisions exist. What you don't seem to understand is that once assets are subject to clawback, they can be end up with anyone who has a claim. The daughter is not the only person who may have a claim. Almost any close family member or dependent (or an ex spouse) may have a claim.

                    I read your post, and for some reason you think that sharing a child with someone means that the ex husband has little to no ongoing familial or financial relationships with the deceased. I think that's incorrect. His financial situation is unknown to us, so it would be presumptuous of you to conclude he has no claim.

                    The fact the grandmother was the executor does not mean clawback cannot apply to assets that were transferred to the grandmother as an individual before the deceased expired.

                    You're not convincing me that you have read any more than 0 judgements. And you won't tell me how many you've read. I still think it's 0.

                    Just to summarise why the husband has a claim rather than "no claim" as you have repeatedly stated: he is the sole guardian of the deceased's child, was previously married to the deceased, and has received no direct provision for the child's maintenance or care. Factors which would clarify whether the claim would be upheld and the estate redistibuted by the court include: the financial status of the husband, the amount of money in the child's trust, the amount of money transfered to the grandmother, the amount of life insurance money transferred to the grandmother, whether the grandmother included the life insurance payout in the estate and gave this to the child, and the grandmother's financial situation.

                    I don't think you need to reply either. You've been consistently wrong and I don't see that changing.

                    • Typical16-bitEnjoyer on 02/07/2019 - 11:20

                      @ozbjunkie:

                      I don't think you need to reply either. You've been consistently wrong and I don't see that changing.

                      You haven't proven a single fact or opinion that I've posted is wrong. You just have a different (albeit incorrect) opinion which you've failed to backup in anyway.

                      Glad you now agree that clawback provisions exist.

                      Again I never said they didn't. You just used a Straw Man.

                      was previously married to the deceased,

                      s14 of the Wills Act 1997 removes the father from the Will.

                      s90-91 of the Administration and Probate Act 1958 does not include the ex-husband in the definition of eligible person. (You're gonna find s s90(e) and go "wait! hang on it mentions former spouse! Sorry, divorce proceedings already occurred and are final.) The threshold is extremely high. Will be mirrored in OP's state whatever that is.

                      has received no direct provision for the child's maintenance or care

                      for some reason you think that sharing a child with someone means that the ex husband has little to no ongoing familial or financial relationships with the deceased. I think that's incorrect.

                      s12 of the CSAA 1989 ends any child support requirement. It always ends on the death of the respective parent and thus the parent OR child needs to claim from the estate. The child is the sole beneficiary, and is provided in the Will, so no application can be made by the FATHER under s90 of the Administration and Probate Act 1958 due to inadequate provision.

                      Factors which would clarify whether the claim would be upheld and the estate redistibuted by the court include….

                      Nope. You've invented those factors. Point to a single piece of legislation confirming what you've typed.

                      Again,

                      1. the father has no claim;
                      2. The daughter is the sole beneficiary and has been provided for by the estate; and
                      3. the father's likely angle is to challenge the administration of the estate, ie. where the money went and to whom, wind up the trust, or both, as only the grandmother handled this and no probate was applied for, so no records likely exist nor provided to the daughter and/or guardian at that time.
                      • ozbjunkie on 02/07/2019 - 12:56

                        @Typical16-bitEnjoyer: Thanks for finally posting something which supports your position. That position does seem to change over time though…

                        "There is literally nothing to contest"
                        Later saying…
                        "I never said clawback didn't exist"

                        So… There is something to contest, because the asset pool under consideration may end up being larger than what was distributed to the daughter.

                        "The father has no claim"
                        Which turned into
                        "Unless the deceased was giving financial help on a regular systematic basis for the purposes of the ex husbands living expenses"

                        Which you don't know, and instead assume.

                        And you go on " s90-91 of the Administration and Probate Act 1958 does not include the ex-husband in the definition of eligible person."

                        To which I reply I don't care what the probate act says, if he wishes to challenge the will under the succession Act, he is an eligible person.

                        You seem to keep ignoring other facts and making assumptions, as when you state "The child is the sole beneficiary, and is provided in the Will" when the op stated there was actually money changing hands close to the time of death, and there is no mention that all of this money ended up transferred to the child. Indeed, it is not clear how much money was transferred to the child, and how much went to the grandmother before death, so it's not possible for us to determine whether the child is adequately provided for in the will "to ensure maintenance and advancement in life".

                        And some things you write are simply irrelevant, for example "s14 of the Wills Act 1997 removes the father from the Will." I wasn't under the impression he was ever in the will. You can claim under the succession Act without being a named beneficiary in the will. Any other red herrings?

                        The relevant piece of legislation for my suggested factors is the succession Act itself, which used the phrase "proper maintenance and advancement in life" and this is this key phrase upon which judgements relating to these types of matters almost entirely depend (at least that's true of the 20+ judgements I've bothered to read).

                        How many succession Act judgements have you read? You still don't answer. I still think 0.

                        If you would like to read the succession Act, you may want to note S13(5a) and s27. These state that divorce does not preclude the court essentially changing a will. S57(1d) explicitly names ex spouses as eligible persons. S59(1b) clarifies that eligible persons who are ex spouses are assessed "having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application". Being the father and sole guardian of the deceased's child is a factor in my humble opinion.

                        S59(1c) contains the key phrase I keep using "adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person".

                        If I had a kid, and an ex wife, I don't think I'd get away with giving large sums of money to my other family members just prior to my death, leaving some money held in trust to my daughter, and no money for my ex to help raise that daughter. That may indeed be what has happened here. That's why the amounts are so important. As is knowledge of the husband's financial standing. This idea is expressed in S60(2b), which explains claims are affected by "the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant" - surely parents who share a child have some measure of obligation toward one another in their shared rearing of a child.

                        S60(2c) explains that notional estate is considered, not just the apparent estate at time of death, while (d) refers to the financial standing of the applicant and anyone else who might be claiming (if the father is claiming and the grandmother has kept any money, she will want to claim too). So that justifies the factors I have outlined. Are we done yet?

                        • ozbjunkie on 02/07/2019 - 13:58

                          @ozbjunkie: Just to be clear - Everything I have written is in accord with the Succession Act, which I referred to in my first post. I read something about NSW above, and without any correction from the op, I have gone ahead and given advice for NSW.

                          Now I see you are talking about Victorian state law. Maybe that's why we disagree. I still feel like if you had read my opening post more closely you would have seen which act I was referring to. Regardless…

                          • Typical16-bitEnjoyer on 03/07/2019 - 10:44
                            -1

                            @ozbjunkie:

                            "There is literally nothing to contest" Later saying… "I never said clawback didn't exist"

                            You've misquoted a sentence from a passage. I was referring to the father's claim. He has none.

                            Which you don't know, and instead assume.

                            Duh. Neither did you. That's why I told OP they need legal advice for the mother in law.

                            To which I reply I don't care

                            Depends on what state OP is in.

                            If you would like to read the succession Act.. .blah blah several paragraphs

                            Nobody cares about your interpretation. It has already been tested. Fail.

                            Lodin v Lodin [2017] NSWCA 327

                            OP's mother in law needs actual real legal advice. Not your guesses.

                            How many succession Act judgements have you read?

                            Play the ball not the man. I guarantee I have read more than you.

                            It's literally quite sad you resort back to this every post - as that's all you have.

                            • ozbjunkie on 03/07/2019 - 12:31

                              @Typical16-bitEnjoyer: Lodin v Lodin [2017] NSWCA 327

                              Wow - thats awesome, thanks for finding that. Very interesting. Pity you didnt post that earlier. So, a question then, because I genuinely dont know, not because I want to antagonise you - does this successful appeal genuinely mean that no former spouse will have their right to claim approved? Or does it mean that ex-spouses with the same/similar situations will not have their claim approved?

                              Im convinced the number of judgements (or at least summaries) is now non-zero.

                            • ozbjunkie on 03/07/2019 - 14:55

                              @Typical16-bitEnjoyer: Glad we agree that the OP needs to see a lawyer, that is indeed what I meant by "confirm the following" in my first post, but perhaps I could have been more explicit.

                              Yeah it's an interesting case, with several notable differences from this one. Mainly that the child is of age and not the dependent of the surviving ex spouse. They had also been divorced for longer. Indeed, these factors are given special mention as part of the judgement of the appeal - "A striking feature of this case is that the Deceased and the respondent separated on 5 April 1990, about 24 years before the Deceased died, and were divorced on 29 December 1995, nearly 19 years before his death. The Deceased and the respondent cohabited only for a period of about 19 months, although Rebecca was born in February 1986, two and a half years before they commenced to live together."

                              There was also a history of reprehensible actions by the claimant against the deceased.

                              The deceased had also provided a statement for why the claimant was not receiving anything from the deceased in an unsigned will.

                              So after reading all that, "unless you're telling me that no ex-spouse can ever have a claim heard because of this appeal, I still think the husband has a claim. The facts of the situation are different.

                              By the way, regarding misquoting you above, I disagree that was a misquote. Your statement that since the daughter was the sole beneficiary there is "literally nothing to contest" ignores the money transferred to the grandmother prior to the deceased passing, which may be subject to clawback. Therefore I claim: there may be literally something that may be contested.

                              Your claim that the grandmother was the executor seems to focus on the life insurance payout, while ignoring the fact that the op stated the deceased began transferring money while still alive.

                              You state repeatedly that the husband has no claim. His claim may be denied, but he can still make the claim, and it will be up to the courts to consider the merits of the case. I never said he would win (although I do think he might), I said the matter he could claim.

                              Finally, the part where you say "duh we don't know this" - yeah I'm not assuming one way or the other, whereas your conclusion "husband has no claim" actually does assume some things.

                              So, even after your rather illuminating and interesting case, which I genuinely thank you for providing, I don't see that you have proved that "the husband has no claim" or that "there is literally nothing to contest". If both these statements are definitely true, then why do you suggest the OP needs to get a lawyer? Seems contradictory to me, can you explain how this is not contradictory?

                              Can you help me see how either of those statements are definitely true based on what we know and your apparently superior knowledge of case law?

                              I am genuinely interested, although it seems you're becoming less interested (and ironically more specific, helpful, and informative) over time.

                              • Typical16-bitEnjoyer on 03/07/2019 - 18:25

                                @ozbjunkie:

                                Im convinced the number of judgements (or at least summaries) is now non-zero.

                                I don't care.

                                don't see that you have proved that "the husband has no claim"

                                I don't care.

                                then why do you suggest the OP needs to get a lawyer? Seems contradictory to me, can you explain how this is not contradictory?

                                So they don't base decisions on posts on an internet forum.

                                Can you help me see how either of those statements

                                No.

                                • ozbjunkie on 04/07/2019 - 16:17
                                  -1

                                  @Typical16-bitEnjoyer: Why you mad?

                                  Lol at "So they don't base decisions on posts on an internet forum."

                                  Yeah I agree, in general, people shouldn't trust internet forums for legal advice. But as an individual, you're the one replying with absolute certainty that the husband has no claim. If you were certain, surely you wouldn't recommend getting a lawyer just in case. Those two statements coming from one person seems inconsistent.

                                  Now if you said, "the husband has little chance of a successful claim" that leaves room for doubt, and recommending the OP get a lawyer would be logically consistent. But an absolute statement of no claim, hmmmm, now that's not so consistent.

  • HeWhoKnows on 25/06/2019 - 15:24

    Doesnt matter what anyone says here.

    As ozbjunkie above indirectly suggested….

    YOU NEED A LAWYER!

    • ozbjunkie on 26/06/2019 - 08:12

      Yeah I did manage to fail to actually make that explicit conclusion. But to be clear, don't get a lawyer until he formally contests the will, as you want all costs to come from the estate.

      5k no contest.
      50k just mediation don't donate it all to the lawyers.
      500k expect an entertaining and wastefully expensive battle.

  • brad1-8tsi on 25/06/2019 - 21:34

    Prior to her death was there an agreed financial settlement with consent orders filed in the court?

    Was a divorce granted and filed with the court?

    Were there orders for the care of the child filed with the court?

    If all that was done prior to the transfer of assets then he hasn't got a leg to stand on.

    Is the trust paying for the upkeep of the child while in the father's care? If it is, how was that amount decided upon?

  • Ayanami on 25/06/2019 - 22:27
    +1

    Some dot points to point her in the right direction, but she's going to need to see a lawyer; try Legal Aid, Community Legal Centres or other pro bono referral services in the relevant local area:

    • The father's claim is most likely really the child's claim; he'd be acting as the child's next friend/guardian at litem on the claim. The father wouldn't have a claim in his own right unless a) he's a beneficiary under the Will or some former Will that he's going to claim is valid and overrides the other Will for some reason, b) he'd be entitled in intestacy, c) he's entitled to make a claim under whatever family provision legislation applies in your local area or d) he's owed some sort of debt by the estate/the deceased. If there were formal family law orders after their divorce, c) and d) are very unlikely.

    • The claim is most likely against the executor/the estate: basically seeking an account of the estate to verify that it has been handled properly. This involves, among other things, verifying that all assets have been properly identified, called in and applied pursuant to the Will.

    • The papers he has sent to the executor should clarify this. Query whether it's an actual, filed served court application, or merely a letter of demand, with or without a draft application.

    • If he really gets into it, part of it will be determining whether or not the funds transferred to the executor prior to the deceased's death were legitimate dispositions made whilst alive, such that they are removed from the estate and not part of the Will, or if they are liable to be recalled for whatever reason. Perhaps the deceased made some written record/confirmation of these dispositions as valid, and did the transfers herself. If the executor was involved in the transfers, that might be a problem.

    • You mention the trust. Is that where the money went? Surely that was set up with the assistance of a lawyer, and if so then if they've done their job this should all be properly recorded and protected. The claim would then really become a claim that the trust is somehow defective, as ultimately the child would still be the beneficiary under that trust or the Will (which is like a special sort of trust in any event). There may be scope for the trustee to defend the claim, in which case the legal fees could potentially be paid from the trust.

    For the benefit of others, if this happened to someone in the future, it would be preferable to use some of the life insurance money to get the entire arrangement all set up and documented properly by a lawyer and to have an account of the estate done properly at the time of death, so that the executor/trustee etc has a relatively straightforward response in the event of a later challenge.

    Hope that helps shed some light, but it's not enough for the executor to work with alone; proper legal advice really needs to be sought with the full story, including documents, being given to that lawyer. The original post and comments have clear gaps so whatever information here cannot be complete, and should not be relied upon.

  • shaybisc on 27/06/2019 - 17:54

    "and she also got a life insurance payout"

    "At the time of her death, she had no money in the bank and she had no other assets, except for a car that was leased, which shortly after her death got written off and the insurance money paid off the loan, nothing to spare."

    I read that as one insurance payout only, which paid the car loan, nothing left over from it. Correct?

  • [Deactivated] on 28/06/2019 - 11:32

    Anyone know if Australia has what is available in US.
    IE. 'Transfer after death', to avoid probate, legal challenge etc.
    I'd like to do this.

    • ozbjunkie on 01/07/2019 - 09:51

      Give your assets away more than 3 years before death.

      Some trusts have your intended effect when properly setup, so I hear, but I have no real understanding of the specifics.

      I can tell you what not to do though, life estates are bad news.

  • Mikeyphoto48 on 01/07/2019 - 08:59

    As a father that lost a son with 3 kids last year and now fairly estranged from his wife’s family, I find this upsetting to read.
    By no means a similar case, (in fact a lot more complex) it’s a F+#king shame that money rears its ugly head so often. Unfortunately the child’s mother has gone and regardless of anyone’s opinion the child is the loser here. And the legal fraternity can start to rub their hands together.

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