NSW Mother's Will and Deceased Estate - Get Re-Appointed as Executor of Will?

[Anne O'Brien]

Don't know if anybody can help out there.....

My Mother passed away 11/14. My only sibling (brother) & I were joint executors of will & sole beneficiaries of her will / deceased estate.

My sibling conned me out of my executorship (silly me trusted him) he wanted full 'control' as he & his wife had been stealing from Mum's bank account for 15 years. He wanted to conceal this & also lied on the "Supreme Court Affidavit for Probate" by not including Mum's main bank account.


My main question is, can I have myself re-instated as joint Executor of will or even sole executor of will, so as to have some sort of say, as I fear he is going to overstate monetary matters to his advantage?

 

[James D. Ford - Solicitor]

Hi Anne

You may have lost your right to be an Executor. Did you formally renounce probate of the Will? or did the Court reserve leave for you to apply for probate at some future date?

PROBATE AND ADMINISTRATION ACT 1898 - SECT 41
Probate to one or more executors, reserving leave to others to prove subsequently
41 Probate to one or more executors, reserving leave to others to prove subsequently
The Court may, if it thinks fit, grant probate to one or more of the executors named in any will, reserving leave to the other or others who have not renounced to come in and apply for probate at some future date.

PROBATE AND ADMINISTRATION ACT 1898 - SECT 69
Executor renouncing probate or not acting or not appearing to a citation to be treated as if the executor had renounced
69 Executor renouncing probate or not acting or not appearing to a citation to be treated as if the executor had renounced

Where, after the passing of this Act:

(a) any person renounces probate of the will of which the person is appointed executor or one of the executors, or

(b) an executor appointed in a will survives the testator but dies without having taken probate, or

(c) an executor named in a will is required in accordance with the rules, or as directed by the Court, to take probate and fails to comply with the requirement or direction,the right of such person in respect of the executorship shall wholly cease, and the representation to the testator and the administration of the testator’s estate shall, without any further renunciation, go, devolve, and be committed in like manner as if such person had not been appointed executor.

====================================================================
Below is the NSW legislative requirement for the Executor to provide a complete inventory of the estate.

What was the estimated balance of your Mum's main bank account at the time of her passing?

PROBATE AND ADMINISTRATION ACT 1898 - SECT 85
Executor, administrator or trustee to pass accounts
....
(5) Every executor, administrator or trustee of the estate of a deceased person shall verify and file an inventory of the estate of the deceased within such time, and from time to time, and in such manner as may be fixed by the rules, or as the Court may order.

Have you informed the registrar of the Court regarding the missing bank account?

PROBATE AND ADMINISTRATION ACT 1898 - SECT 81A
Disclosure of assets and liabilities of deceased
81A Disclosure of assets and liabilities of deceased
(1) A person who applies for a grant of probate or administration in respect of the estate of a person who dies on or after 31 December 1981 shall, in accordance with the rules of Court, disclose to the Court the assets and liabilities of the deceased.
(2) An executor, administrator or trustee of the estate of a person who dies on or after 31 December 1981 shall, in accordance with the rules of Court, disclose to the Court any assets and liabilities of the deceased which have not previously been disclosed to the Court.



Kind regards

 

[Anne O'Brien]

Hi Anne

You may have lost your right to be an Executor. Did you formally renounce probate of the Will? or did the Court reserve leave for you to apply for probate at some future date?

PROBATE AND ADMINISTRATION ACT 1898 - SECT 41
Probate to one or more executors, reserving leave to others to prove subsequently
41 Probate to one or more executors, reserving leave to others to prove subsequently
The Court may, if it thinks fit, grant probate to one or more of the executors named in any will, reserving leave to the other or others who have not renounced to come in and apply for probate at some future date.

PROBATE AND ADMINISTRATION ACT 1898 - SECT 69
Executor renouncing probate or not acting or not appearing to a citation to be treated as if the executor had renounced
69 Executor renouncing probate or not acting or not appearing to a citation to be treated as if the executor had renounced

Where, after the passing of this Act:

(a) any person renounces probate of the will of which the person is appointed executor or one of the executors, or

(b) an executor appointed in a will survives the testator but dies without having taken probate, or

(c) an executor named in a will is required in accordance with the rules, or as directed by the Court, to take probate and fails to comply with the requirement or direction,the right of such person in respect of the executorship shall wholly cease, and the representation to the testator and the administration of the testator’s estate shall, without any further renunciation, go, devolve, and be committed in like manner as if such person had not been appointed executor.

====================================================================
Below is the NSW legislative requirement for the Executor to provide a complete inventory of the estate.

What was the estimated balance of your Mum's main bank account at the time of her passing?

PROBATE AND ADMINISTRATION ACT 1898 - SECT 85
Executor, administrator or trustee to pass accounts
....
(5) Every executor, administrator or trustee of the estate of a deceased person shall verify and file an inventory of the estate of the deceased within such time, and from time to time, and in such manner as may be fixed by the rules, or as the Court may order.

Have you informed the registrar of the Court regarding the missing bank account?

PROBATE AND ADMINISTRATION ACT 1898 - SECT 81A
Disclosure of assets and liabilities of deceased
81A Disclosure of assets and liabilities of deceased
(1) A person who applies for a grant of probate or administration in respect of the estate of a person who dies on or after 31 December 1981 shall, in accordance with the rules of Court, disclose to the Court the assets and liabilities of the deceased.
(2) An executor, administrator or trustee of the estate of a person who dies on or after 31 December 1981 shall, in accordance with the rules of Court, disclose to the Court any assets and liabilities of the deceased which have not previously been disclosed to the Court.



Kind regards

Hi James,

Thanks so much for your informative response, yes I did sign a Form to renounce. There was an inventory supplied to the court, where Mum's 'main account' was not included, only an account with $2,000 in her name only. The main Credit Union A/c was in my Mother's name & my sister in law's, my brother & her put herself as an "Owner" (these days a Trustee, so I am told) this was done by stealth as she was supposed only to be a "Signatory", for shopping, bill payments, trips to doctors etc.


The Credit Union supplied a letter of Mum's a/c to Estate Solicitor, which showed no balance on the "main a/c" due to the fact that it was owned by two & was omitted due to privacy of remaining "Owner" as I confirmed with Credit Union. So the Estate Solicitor took it on himself to assume there was no balance in Mum's main a/c, very convenient for the 'Executor' don't think he was asked, but who knows.

I was not aware I could approach the "Registrar of the Court" re the missing account, I just felt I had no rights at all. The balance of the account at death was approx. $15,000 after funeral payment, it should have been $150,000 at least....


Kind regards

 

[James D. Ford - Solicitor]

Hi Anne

There are in my view, at least two separate legal matters here....

1. Potential abuse of power by EPOA prior to your mother passing away... using circa $135k for own benefit;

2. Failure to disclose all assets of the deceased to the Court... though, the Bank Statement was provided... so this could be a complex legal argument... however, my preliminary opinion, in that as it was a joint account... the other holders might have automatically gained the legal right to the money upon the death of the other joint account holders.. and the money might not have formed part of the estate.

This would then change the first matter to the following:

1. Potential abuse of power by EPOA (EPOA = Enduring Power of Attorney) if this was the case, to create a joint account... for their own benefit, effectively gaining $150k, in the process.

This then creates a FACTUAL question, regarding the timing and circumstances of the creation of the JOINT ACCOUNT.

Was the joint bank account created with the informed consent of your mother? or done behind her back?

Kind regards