Seeking Advice on Defending a Will against a Contested Claim

hasselbladsnapper on 04/06/2023 - 09:06
Last edited 04/06/2023 - 09:09

I am an executor for my mother’s will and last week was landed with a claim from my sister contesting the will for additional funds due to her poor health and financial difficulty reasons.

I would appreciate some feedback from others who have had similar experiences as I cannot find much on the web and want to be better informed before I contact a lawyer.

The claim appears to be ambit as it is asking for almost double her calculated inheritance from the will, is based only on my sister’s version of events which are contested and the fact that detailed reasons for the amount have not been provided. Does anyone have any idea what percentage of the claim amount they would realistically be looking for?

Is it relevant to raise her propensity to run up debts and that the current debts were caused by her purchase of half of our mother’s house in a remote rural town against the strong advice of family members and her lawyer at the time? It soon became apparent that she could not really afford the mortgage when she asked for our mother’s share of the anticipated rent money to meet her repayment commitments. Her financial woes were then compounded by not employing a real estate property manager and not vetting would be tenants against family advice leading to rent not being paid and some property damage. She is in her 60s and in receipt of a generous Government defined benefits pension.

Does the question of character come into it? We have witness accounts of police activities regarding alleged insurance fraud related to the property and visual and witness evidence of the property’s industrial size shed being used as an alleged drug grow house.

In the claim my sister wants to reduce my relatively modest inheritance from the residual funds of the estate by nearly 80%. Is there anything that provides for the poor old executor who has spent months of her life doing unpaid work as financial manager, POA, carer, NOK and now executor over the past six years protecting the intended inheritance?

Any advice and tips would be much appreciated.

General Discussion Will

Comments

  • Trying2SaveABuck on 04/06/2023 - 18:05
    +6

    Your sisters is a bum but dragging this out in court will eat up a lot of cash your in a lose lose senario personally id burn all the money to the ground before i let an idiot like that get her way

    Too many useless leeches in society these days

  • hasselbladsnapper on 04/06/2023 - 19:09
    +24

    Greetings OzBargain team responders, I thank you all for your wisdom and sage comments, it has assisted my wife no end, and I hope she can resolve the situation to maintain her family harmony.

    For me, I might retain some mental peace, it's never nice to have to deal with these situations, I am proud the OzBargain team have come through for her, I have told her in the past that there are many smart people that post here ~ Well Done & Thanks!.

  • yoho on 04/06/2023 - 20:41
    +4

    I feel for you. It is tough enough being an executor and settling the estate without someone contesting it.

    I like the idea of offering a token amount of $20K, and indicate this is the amount you are likely to spend on defending your Mothers wishes. It feels like no one has been treated unfairly in the will, so it will probably go unchanged anyway but the value of the estate would certainly be diluted by more than $20K.

    Of course, if the offer is rejected then it is lawyer time.

  • drfuzzy on 04/06/2023 - 21:21
    -6

    You haven't provided enough information to receive a helpful reply
    How large is the estate in dollar terms
    How many beneficiaries
    What is the breakdown for each
    What is their relationship
    When was the Will written and signed
    These are just some of the basic questions you should have included if you want a reasonable answer.

  • hasher22 on 05/06/2023 - 00:08
    +1

    As nearly everyone stated, say nothing to your sister and speak to a lawyer.

    If it were me, 50/50 or have the financial will eaten up by lawyer fees. Your call.

  • MadMud on 05/06/2023 - 02:13
    +3

    Seems clear cut. Equal shares to each sibling. No secret children, no alternate will, no bias.

    Does she know she's liable for all her legal costs? The executors legal costs are covered by the estate. When she loses its really going to hurt.

    The executor can also claim costs of their duties, up to 1.5% I believe. YMMV.

    As everyone has already said, talk to a lawyer, everything here is just a suggestion.

    Hope you get it sorted to everyone's satisfaction.

  • gromit on 05/06/2023 - 07:54
    +1

    seek legal advise as others have commented. But expect to be disappointed. I know the laws have improved a little but the from mothers experience some years ago and speaking to others involved in the area the court still doesn't seem to favour what is fair or what the deceased wished, they base on who has the most need. My Step Father died and gave incredibly explicit instructions with his will stating his son had already been given his share prior to death, the Ex wife of 16 years previous and the son both challenged and were both given a share by the courts based on their needs even though they appeared to have no legitimate claim.

  • Gesiet on 05/06/2023 - 08:02
    +5

    My partner had a similar issue, but in the reverse side. Sister had coerced mum into leaving nothing to the two other siblings (left out entirely). Partner and other sister challenged the will.

    In the end they got something and it was worth it, but it’s expensive to challenge a will (around $30K before mediation or court which it didn’t get to in their case fortunately). So you may find she has no funds to do that and that in itself may be a deterrent.

    In Qld at least it generally comes down to need. If someone is in a worse financial / health situation, they’ll get more, regardless of if they’ve been silly/dodgy with money in the past unfortunately.

    Can highly recommend the book by Zinta (link below) for a peaceful resolution. She may have a recommendation for a good lawyer in your state who is focused on a quick resolution.

    https://resolveestatelaw.com.au/about-us/

    • hasselbladsnapper on 06/06/2023 - 14:50
      +2

      Hi Gesiet, Thanks so much for the book link, we now have it on Kindle and it's superb. I has created a roadmap for us on how to resolve the situation.

      It is easy to read, and well worth the $12 on kindle "Rest In Peace" by Zinta Harris (How to manage Estate Disputes)

      A gem of a book !!

      • Gesiet on 07/06/2023 - 08:45
        +1

        You’re so welcome, really glad it helped. Zinta and her team did a great job for my partner and his sister in resolving their claim.

  • hasselbladsnapper on 05/06/2023 - 08:47
    +3

    Greetings Team, Thanks for your recent considerations and thoughts. The wife has had a sleepless night, but is highly appreciative of the suggestions, she will be working out her response to the demands of her errant sister with the Ambulance Chaser!!.

    The next 2 days will give her chance to create a checklist before we see a lawyer mid week.

    You all have exceeded my hopes in seeing my wife recovers from this unexpected onslaught.

    Power to the OzBargainer's. - Truley THANKS!!!!!

  • TP53 on 05/06/2023 - 09:08
    -4

    Get a lawyer .

    I’ll be doing opposite when my abusive mother dies ( hopefully soon ) as she is the reason for my CPTSD & other things as stated by a Clinical psychologist
    I’m told I can contest it ( cause she rejected me but not my brother ) and possibly get more than my brother as 1 of my 2 adult children has a intellectual disability plus mental health issues and I need to care for him for the rest of my life whilst on DSP as I have 90% chance in getting my 4th cancer , after I die that responsibility will go to his sister .
    Legally I have 50% of my mothers inheritance when she dies .

  • Fuzzy Toaster on 05/06/2023 - 09:28
    +5

    OzBargain is a terrible place for advice on this topic. You have two options:

    1. Work out an agreement with the sister.
    2. Talk to a lawyer.

    That's pretty much it. You shouldn't be listening to anyone else.

    • The Wololo Wombat on 07/06/2023 - 15:49
      +1

      I disagree, if you were to take option one (as you have suggested) understanding a range of different perspectives (especially others who have been in a similar situation) allows you to act with confidence.

      • Fuzzy Toaster on 08/06/2023 - 08:21
        +1

        That's fair. I was only thinking about legal advice, which shouldn't be gotten here; but you have a point when it comes to discussion with the sister.

  • Rob-4x4 on 05/06/2023 - 10:07

    This song sums up what you need to do nicely. Sadly the only people to win out if this will be the lawyers .. :(

    https://youtu.be/S4R1EAFTWqY

  • 2esc on 05/06/2023 - 12:07
    +1

    As executor any reasonable costs inccured by you while being executor in those duties i think can be deducted from the estate?

    Cost of lawyer to defend your mother's will can also be deducted from the estate not your pocket from my understanding.

    As executor your job is to help fulfill the wills intent.

    Sad to say get a lawyer.

    • gromit on 05/06/2023 - 12:52
      +1

      this is the problem my mother faced and many seem to miss. The reality is whether it is the estate or you it is still coming out of your pocket, My mother nearly exploded at her lawyer when he tried to tell her don't worry about the costs it comes out of the estate, which of course as the main beneficiary means it was indirectly coming right out of her pocket.

  • vegemite2008 on 05/06/2023 - 12:20
    +1

    As the executor, you can hire a lawyer, on the behalf of the estate, let the lawyer deal with your sister. The funds for the lawyer fees, will come out of the estate.

    Contact a lawyer that specialises in estates. Good luck

    • vegemite2008 on 05/06/2023 - 12:22

      Keep the money in an estate account for 6 months.

      After that the will cannot be challenged.

      Of course there are exemptions when it can be challenged

  • jonkvh on 05/06/2023 - 13:04
    +1

    In SA the minimum amount that has to be left to someone/relative etc is $20,000. After that, if there is an already stated amount for your sister, contesting it is a waste of time for her. Also, just inform her lawyer that you won't negotiate. They can instigate court action on their own, in one sitting it should all be over.

    • hasselbladsnapper on 05/06/2023 - 13:16
      +2

      Appreciate that, and very interesting!!!!! will follow this up, has put a smile on the wife's face, a bit rare in recent day's.

      Thanks and Cheers!

  • BargainCowboy on 05/06/2023 - 13:15

    Oh boy, here we go

  • mavis30551 on 05/06/2023 - 15:08

    in the last few months 2 different people have told me about family members contesting Wills.

    In both cases the only person to win was the lawyers who took massive chunks of money and left barely anything left over for anyone else when it was finally settled

    Good luck.

  • serpserpserp on 05/06/2023 - 16:04
    -5

    TLDR

    My sister's wants more inheritance.

    I don't like my sister

    I might lose some money that wasn't mine to begin with.

    Waah.

    • Protractor on 06/06/2023 - 13:12

      TLDR2
      Vultures eat meat.

  • AuSlade on 05/06/2023 - 18:01
    +6

    A lot of comments here, and I apologise if any I say has been covered before. I went through this exact same situation, during the Covid lockdowns in NSW. My mother died (not from Covid), and I was the executor of the estate. There are three other siblings, two being interstate and one relatively local. That one sister was "helpful" until we found the Will (it was old, but still valid), then she stopped "helping" and just on 12 month anniversary of the estate, she filed against us.

    To say it was distressing, is putting it mildly. If you have a good Solicitor handling the Will / Estate, make them aware that your sister intends on filing a claim. She will have to fund any claim out of her own pocket initially, but I can almost guarantee the estate will end up paying for everything.

    In our case, after dozens and dozens of hours, reading and responding to multiple affidavits (these numbered in the 50 - 100 page documents), we ended up with court appointed mediation. In the end it cost the estate $80k in legal fees, plus my sister ended up with a total of approx. $20k more.

    Here's my suggestions:
    * Get a good Solicitor who will get a good Barrister (we had a Barrister named Louise Goodchild, she was fantastic, and on the whole quite cheap)
    * Mediate before it gets too far. Solicitor and Barrister fees add up damned quickly. In my case, the Estate had fees in total of $30k, my sisters legal fees were $50k (in all likelihood inflated, but who knows…)
    * Anything, and I do mean anything you can use against your sister, do so (poor character, self inflicted financial mess). It sounds mean, but your job as the Executor is to protect the Estate. We combed the internet for information, and contacted her estranged family members. Your sister will be required to disclose her financial situation, and you will want to go through that with a fine tooth comb. My wife spent hours going over my sisters financials in a spreadsheet, to ensure her numbers were accurate (they weren't).
    * You will need to disclose your assets / income as well. Don't lie, it's not worth the effort, and it will come out eventually.

    Essentially, you will want to make your case as strong as you can, as to why your sister should not get any additional funds. Everything you've mentioned in your post, provided you have proof, is good. Hopefully you've kept the communication you had regarding non paying tenants, advice from Lawyers, etc.

    It's going to take hours of your time and create a lot of stress. I hope you have good friends and other family that can help.

    One last thing, most of the time the Estate loses, and irrespective of the outcome, will pay the legal fees of everyone. In our situation, we had a strong case that probably meant my sister got nothing, but the risk was a further $50-$80k in legal fees (which the Estate pays), and it just wasn't worth it. Get a good Solicitor and try to find a happy ground. 80% is ridiculous, but we whittled my sister down from 25% of the estate to much much less.

    Good luck.

    Edited: spelling.

    Edit 2: I just remembered something. In NSW, if you make an offer (for additional concessions from the Estate to your sister), you automatically are considered "at fault" (apologies, that's not the correct term). Please talk to a Solicitor before saying anything to your sister. We made no offers until we ended up in mediation. It sucked, but there's a reason we have Lawyers and Solicitors (because the other person has one, with nothing to lose).

    • hasselbladsnapper on 05/06/2023 - 18:22
      +3

      Greetings AuSlade, your detailed comment is very interesting, we hope relating your experience has not re-traumatised you.
      The wife is hard at it preparing initial documentation, but it appears to be a long tortuous path!.

      We very much thank you for your time and effort in relating your experience ~ Thanks so much.

      The combined knowledge in this thread is inspiration for us and it may well be a primer IF any others in our OzBargain Community shoud find themselves is similar circumstances.

      We intend to make future comment later as this unfolds.

      Thanks to All for your continuing support !!.

      • AuSlade on 05/06/2023 - 19:24
        +3

        Hey Hasselbladsnapper,

        I'm good, thanks for asking. At the time, it was very stressful. My sister tries to overwhelm people with sheer volume of information and included dozens of pages of nonsense in her affidavits. The Estate's Solicitor will just forward this to you for you to respond to. After long work days, and having tight deadlines for responses, staying up multiple nights to midnight to respond to pages and pages of "information" does wear on you and very quickly.

        My quick takeaway, is find something you enjoy and do that to take your mind of the situation. Trust the Solicitor to do the right thing.
        And I really hope things don't spiral out of control, like it did for us. My sister is quite vindictive, and plays the victim very well. Thankfully we had some good evidence that made her arguments poor.

        Be patient, thorough and if things do get bad, and you end up in court, keep all your emotions in check. They play against you.

        • hasselbladsnapper on 05/06/2023 - 20:30
          +2

          Hello AuSlade,

          The Executor here. After scratching around and recovering from the shock over the past four days I have finished with the venting and returned to rationality. I have crunched the numbers for my sister's income and assets to find she will have assets worth over $2m and a gross income of 84k after the assets of the current will have been distributed. Her debt levels and repayments compared to income are in the teens. My assessment is that she will be in a very good financial position and would have no grounds to challenge according to SA law where you need to demonstrate that you have not been adequately provided for. However I am not a lawyer and these things are perverse. Now I know what our position is the next step is to find a good lawyer to take it forward. Your feedback and the comments from the other OzBargainers has been very useful. Thankyou. Maybe when this all over I could start a campaign to stop this nonsense! It would not be very popular with the lawyers though.

  • drfuzzy on 05/06/2023 - 18:56

    Why are people here saying "get a good lawyer" when the OP has not shared how large the estate is or how the estate is being divided?
    The reality is there are alot of families with small estates of $300,000 or less. By the time you pay the solicitor, the barristers and the court there will be nothing left. Insufficient information to offer much specific advice.
    I've been through this before as executor and not even a beneficiary. I agree it is traumatic.

    • ankor on 05/06/2023 - 20:12
      +3

      https://www.ozbargain.com.au/comment/13845320/redir

      It's not in the OP but it's in the comments.

    • Fuego on 05/06/2023 - 22:03

      Why the hell are they asking on the internet, and OzBargain of all forums? It's the most legally and financially illiterate place you could go.

      • hasselbladsnapper on 05/06/2023 - 22:24
        +4

        Hi Fuego, This request was for sensible comment, and personal experiences, there have been quite a few and we thank them profoundly.

        We are not trying to circumnavigate the Legal Sector, but to refine an ask list when we do shortly meet with them.

        I was brought up with the mantra " to be forewarned is to be forearmed" and the OzBargain team has assisted in that.

        Best Regards

  • yyhazy on 06/06/2023 - 00:13
    +1

    I am a solicitor and I have worked in estate litigation. From my experience (in NSW) many family provision claims are ultimately resolved out of court. However, this resolution often comes after a substantial investment of both time and money. If the value of the estate is significant, enlisting the services of solicitors (and barrister, if required) who are experienced in the field would increase your chance of obtaining a favorable outcome.

    • hasselbladsnapper on 06/06/2023 - 08:45

      Good Morning yyhazy,

      Your consideration and advice is much appreciated, it is indeed most unfortunate that after 6 years of dilligent care for the welfare of my wife's mother and striving to see all her siblings are provided for in accordance to her mothers wishes, that it is decending into legal conflict.

      One "Black Sheep" is causing this strife, it is not appreciated by the others, as prime Executor she has been dilligent to ensure her brothers and sisters are treated fairly.

      Your comment along with others have helped her cope with this impending legal mire!. Thanks once again.

    • idonotknowwhy on 07/06/2023 - 12:21

      Should OP get these forum posts deleted in a situation like this?

  • screensaver on 06/06/2023 - 00:16

    Inform Centrelink of all this wealth she is squandering on lawyers

  • 1Kenobi on 06/06/2023 - 08:00

    Try Reddit / auslegal

  • RedDevil860 on 06/06/2023 - 08:04

    Well I wont have that issue. I asked my parents to not add me to the will. So my advice is not going to be something you like. Make your own wealth. Unless you have funeral bills, stop whining.

  • Punda on 06/06/2023 - 08:55

    How can she be getting a pension when she owns half an investment property? Also if she inherits all this money that’s going to cut her off too. Pretty sure a pensioner has a cap of assets.

    • Yola on 06/06/2023 - 09:09

      In the OP it states that it's a government defined benefit pension. This is a pension for ex government employees and is not subject to any income or assets tests.

    • Protractor on 06/06/2023 - 13:23

      Or maybe she married or defactoed a war service veteran who died and she is the 'widow'.

      • Yola on 07/06/2023 - 07:44

        She had a Government job for over 30 years..

        OP stated on page 1.

        • Protractor on 07/06/2023 - 10:31
          +1

          Roger, I was being broad about how ppl with a pension (some types of) can still own investments

  • Brianqpr on 06/06/2023 - 09:42

    You will absolutely need a lawyer.

    Also, although you may want to contest her arguments, the estate bears the legal costs, so the longer it drags on the less is left for all beneficiaries. Only the lawyers win as they say.

    Probably depends how far you think she is willing to take it, as she will also be losing out if it drags on, both in a potentially reduced share and the time value of not having the money.

    • hasselbladsnapper on 06/06/2023 - 14:37
      +3

      You are right on the Lawyer!, we have two meetings shortly.

      One of our OzB posters gave us a link to a book on the subject ~ Rest In Peace by Zinta Harris ( How to manage estate disputes) $12 on Kindle …. it was a fantastic help and has created the roadmap to sort this out.

      So Thanks for your comment along with thoughtful other postings.

  • ChipsChicky on 06/06/2023 - 09:51

    Try to find a lawyer who will charge your sister, after winning the case.

  • Protractor on 06/06/2023 - 13:06
    -1

    The supply of gullible ppl who think OZB is a smart (any) substitute for proper legal representation is unending.

    OP
    Your armchair legal opinion and even those anecdotal tales of your sisters character make good reading for voyeurs, but devalue your aims.
    Even if for no other reason than to respect your late Mother, and come out the other side with emotional well-being and a possible family cohesion or reconciliation, get offline and get a lawyer.
    (Tip, there's even some firms who can handle the language barrier.)
    I hope it doesn't become a civil matter for your sake. Posts like this can bite you on the butt.

  • Eeples on 06/06/2023 - 15:43
    +1

    Was the claim for more money sent from her lawyer or from her only?

    Was the claim in an letter, email, message, 3rd party message, verbal?

  • nikey2k27 on 06/06/2023 - 20:19

    give little to get a lot more back start chat to sister tell how hard your life is? if go to court as hard ass enjoy zero for all only lawyer will win

  • kaleidoscope on 06/06/2023 - 23:42
    +1

    Stop talking to them and go see a solicitor. Do not agree to anything in writing or verbal to other interested party without the advice of the legal person. These $hit can go real nasty and you could potentially loose everything including your relationship with said person.

    Good luck!

  • Bluto Mindpretzel on 07/06/2023 - 15:10

    Could be challenging, as where there's a will there's a way. Lawyer up.

Login or Join to leave a comment
Login Join