VIC Executor of Will - Removal or Sue?

[Pete Evans]

Hi all,

Looks like I'm another confused beneficiary with some major executor issues so any help most appreciated. In brief, Mum dies with 3 sons left as beneficiaries and the youngest being an accountant appointed as executor of will. The 4th and oldest brother is written out of the will. The executor creates a rule that goods recently gifted to Mum can nominate their return. Lawyer for exec. confirms this is normal procedure with no time limit on when gifts were given. The lawyer is a lying a-hole as is the executor. The executor deliberately underestimates value of estate cash held, value of items in house and value of the car in case the 4th brother makes a claim . The exec. removes $30,000 approx from the accounts and only declares a few grand cash at time of death in the inventory of assets when doing probate.

When making a further distribution comes up with 10 pages of financials as he had being managing Mum's money and paying her interest for many years but then discloses she was in debt to him of thousands of dollars at time of death. This wasn't disclosed in The Inventory of Assets and Liabilities.

I challenged this through a lawyer as I copied many financial documents before they went interstate to his address. He came clean and acknowledged it as an "ERROR" but then attempts to blackmail us [of sorts ] i.e. Take this sum now or will delete what he calls unofficial loans of some 20k [truly bizarre]. But we have to accept flights and accommodation for his wife, 1 k of vet bills and, car costs of 1k.

It is worth noting he took Mums car interstate against my advice as the car had some major faults, charged the estate for repairs and extras then gave the car away to his gardener/ immigrant friend, then only allocated 3k for its value which was 1k less than what he recorded in the inventory of assets. He had already transported car interstate [wife] before according a value in the inventory of 4k.

I get supreme court to ask him to lodge an administrative account which he eventually does but then lies his head off in that as well and twists things big time .

Do I go to police and have him charged for lying on an affidavit? And can he use estates funds to fight this?
Do I attempt to go to supreme court and have him removed for misconduct? And do a full audit at great expense and risk?
Do I try the sect 54 in Supreme court and lay it on the line before a Judge to at least remove the cash and get him to lodge tax returns which he won't do until we approve his moronic dog, wife, car costs, etc.?

I'm lost.

Cheers.

PS: He confesses eventually to the real value of goods in the house at double to triple he recorded on inventory .

 

[Pete Evans]

"Do I go to police and have him charged for lying on an affidavit? And can he use estates funds to fight this?
Do I attempt to go to supreme court and have him removed for misconduct? And do a full audit at great expense and risk?
Do I try the sect 54 in Supreme court and lay it on the line before a Judge to at least remove the cash and get him to lodge tax returns which he won't do until we approve his moronic dog, wife, car costs, etc.?
I'm lost.
Cheers.
PS: He confesses eventually to the real value of goods in the house at double to triple he recorded on inventory ."

Anyone care to comment or offer advice on the above ?
Cheers

 

[beanie]

Hi Pete,

Lying on affidavit does not mean a crime is committed. Perjury is a crime with many layers to prove and all aspects must be proven beyond reasonable doubt. Only a lawyer can give you an idea if the executor had committed a crime. You shoukd seek legal advise and ask if there grounds for removing him as the executor, this will give you an idea whether its worthwhile pursuing your case. Prepare all your evidence and try and get 1/2 hour free advice from law institution referral. That 30 minutes will be a good test for your case. If you cannot convince a lawyer who stands to benefit from your case that you indeed have a case, more than likely you won't win.

If the probate hadn't been granted it maybe easier. No matter how terrible a manner he had behaved it is no good unless you have evidence to prove both misconduct and intent. If testimony is your evidence, it would bear more weight if given by 2 or more people that has no interest in the outcome (e.g. family members).

Hope this helps. Good luck!

 

[Pete Evans]

Hi there Beanie, Firstly thanks for your thoughts and I note you've been having a hard time with something similar but a different jurisdiction . [lying on affidavits etc]

I find it real strange [or do I ] that not one lawyer with supreme court experience has made comment as my original questions were posed 2 months ago .

The problems I have are that lawyers charge $300-500 per hr. Then lawyers want cash up front for a barristers view as well and if the case proceeds. They all want x cash in advance just to show up to court.The estate has x cash left divided by a few. Typically lawyers quote tiny amounts at an attempt to remove an executor when the absolute costs to the estate could run out to over 100k [in my view]. No one, BUT NOT ONE, can be definite on how a judge will rule and award damages and costs. I can cite many cases where the costs given to the winner are only 75 percent of the original spend.

The executor is a professional con artist and has already run up probably 100 pages of absolute crap lies and deception which will be a good starting point but once a lawyer gets into it I can imagine bills of hundreds of hrs and all paid up front. To them and like the executor it is just a freakin money game now and hardly relevant to what the deceased wanted in the first place .

cheers

ps; Thoughts and prayers for you and don't let that nasty lying pig of an x get into your head as it is all part of a twisted game

 

[beanie]

Thanks Pete for your thoughts and prayers. I feel for you because first, like yourself I'm facing a socio-path who has no concious in lying so blatantly even to law enforcers. Second of all, I was in a similar position before. My father past away two years ago and left my only sibling (brother) as an executor. To make things more 'exciting' my father left a severely bias will at the 11th hour of his death because he was under duress. My brother was named the executor. We are originally from country X, but my father died in country Y and I live in Australia (Country Z). I know that some years prior to his death he set out a will when he was calm and composed that the share between my brother and myself was 50-50%. There was a lot I could have done to pursue the case and obtain the 50-50% share instead of my brother having 3 times more than me. In addition, my brother was in control of their accounts overseas, so lord only knows how much was declared and how much 'debt' he claimed that my dad owed and had to be paid out of the estate.

After much thought, I decided to let that go. If I had fought, it may have cost me, like yourself, upwards of $100k in fees and years of litigation yet no guarantees of winning. But if I had won I would have been a hell lot more wealthy today. Life can be unfair but sometimes I choose to be compassionate towards my brother then. In this case against my ex, I had also been given the same advice of letting it go, accepting the order and moving on, instead of months in litigation and over $10K in fees. But being mis-treated once and I simply had enough. I have made a firm decision to fight back this time, regardless of cost and time.

It is not an easy decision. I am sure you have no doubt in your mind that executor has no place on earth except in jail. Getting there will be costly and may not be easy, however, only you can make the decision whether it is something you feel strongly enough to pursue for years. Another advice I had been given should you choose to pursue is - don't give up and don't let other negative opinions get you down. Stand up for yourself. Read the case of Nassir Bare - a man who suffered such unjust from police in 2009 when he was 17 and he complaint against them through every avenue he could and was denied each time until 29th July 2015 he finally got his first preliminary win after more than 6 years since the incident. If you choose to fight, have no doubt it will be costly and long drawn - the first question you have to answer yourself is - is this a justice you are willing to go to the ends of the world to pursue?

I am lucky I got myself an extremely compassionate lawyer who not only didn't charge me for the first few hours because he believed in me and felt strongly about my predicament. I was prepared to pay him the full $385 ph for his time. Before I found him, I've rang a dozen of DB lawyers. So, even in the case of finding a good lawyer, it will take some determination. For that again, I wish you luck and strength. Keep me posted.