WA Questions Regarding Grandfather's Deceased Estate

[acey]

Hi,

I’m 1 of 2 executors of my grandfather’s deceased estate and also a beneficiary of the estate.

To cut a long story short ( which is quite messy ):

- A family member was power of attorney for my grandfather and he took care of him and sorted out my grandfather’s finances. Unfortunately the person did the wrong thing and took money out of the estate and put it in their own bank account and paid any estate bills from it.

- The estate had a house, car and money in a bank account before the POA put it in their account to pay the bills.

- The house and car were sold by us executors and the family member contested the will - after years of back and forth with lawyers and each party it made its way to the supreme court and an agreement was made minutes before going to trail ( as part of the agreement I signed a drafted letter stating that the estate would continue to fight for the missing money to be returned )

- The money was distributed to the beneficiaries as per the will.

- We still have the problem of obtaining the money from my grandfather’s bank account – we have proof of what was in the account and the family member has shown receipts of what they’ve spent and has stated that my grandfather said to the family member that they can keep the left over money before passing ( but no proof ).

- Action is being taken to go back to court to try and recover this money.


The money that was in the account before the family member put it into there’s then deduct the receipts leaves a sum of about 40k.

Assuming we recover this amount that’s left over and pay for lawyer fees and distribute the money with the beneficiaries it seems in my eyes hardly worth the effort and expense as the winners will be the lawyers out of this.

The other executor wants the full amount of money returned to the estate with interest over the years that the money hasn’t been in the estates care, this is where we don’t agree as I have reminded the executor that the family member has paid for bills so deduct that off the original figure that was in the bank account.


Question I have :

- Is there a way that I can apply to the supreme court and relinquish being an executor from the estate and pull out of this? Or will this cost too much money to do now? And because I signed to say the estate would continue to fight for the money am I stuck in this mess?

- How things are panning out we will be heading to court again as mediation failed – obviously to go to court there will be a cost to the estate, I can’t afford to give money to the estate to move forward but I’m being pressured into handing over quite a bit of money to proceed with legal proceedings. What are my options?

- Is it fair to claim interest on this money that hasn’t returned yet?


Thank you

 

[James D. Ford - Solicitor]

Hi acey

Renunciation of Probate

Will the other Executor agree to continue as sole Executor for the purpose of chasing the missing money?

I await your response.

If the other Executor agrees to continue as sole Executor, then there may be a chance as it could be argued that the Beneficiaries will not be disadvantaged - but please note the following:

Intermeddling in the estate
Generally the court won’t accept an executor’s renunciation of probate if the executor has intermeddled in the estate. This is to protect the interests of beneficiaries and creditors of the estate.

What might be regarded as intermeddling in the estate is not always clear. It depends on each situation.

In some instances, the extent of intermeddling might be such that it would be considered that a person named as executor had accepted the position, by their conduct such as paying creditors, selling things, and other acts that are in the nature of the executor role. The court could possibly then compel the executor to continue in the office.

Do not hand over any of your own money!!

You have no personal liability to pay any money to the estate.

The entire current situation appears ill-advised - How did the estate make a commitment to pursue the missing funds, and then distribute all of the money, so that it has no funds in order to fulfil its commitment to pursue the missing funds?

Funding the Litigation
Has a legal budget been set?
Have you obtained legal advice about the letter you signed on behalf of the Estate, and what happens if there is no money?
Are the Beneficiaries in unanimous agreement that they will all contribute in their % entitlements under the Will.. to help fund the estate's litigation?
If not, I cannot see how the estate will be able to fund the litigation?

Potential Criminal Matter
The taking of the missing funds, might be considered a criminal offence? Fraud by abuse of position/power? If so, the Police might prosecute at no cost to the estate?

Whether to claim interest on the missing money
This might form part of the damages claim... loss of earnings?

It is not a question of fairness. There would be a duty to the Beneficiaries to recover all money legally entitled to be recovered.

At this point in time, I simply do not have enough information... so I am unable to comment further and suggest that this is a matter for the lawyer/barrister to consider when preparing the pleadings for the litigation - if there is money to do so...

Kind regard

 

[acey]

Hi James

Thank you for taking the time with your prompt and detailed reply, it's greatly appreciated.

The question has been asked to the other executor ( who is also a beneficiary like me ) if I could step down has said no he doesn't agree because of the letter I signed and also the fact I don't think he wants to front the whole cost of this exercise himself even though he's the one pretty much driving it.

As you've also stated below I don't know how the court would see this as I have been involved since day 1 intermeddling in the estate.

The estate has always been trying to recover this money from day 1, but we kept getting blocked by the defendant especially when he contested the will, so the focus was drawn on that. We went to the supreme court but before actually going to trial this is when we made a deal with the parties and the letter was signed stating the estate is to peruse these funds.

The money was then distributed to the beneficiaries and a sum of money was set aside to chase the missing money - and this is where we are now - ready to go back to district court and I'm being asked to front money for the trial as there is none left in the trust account.

Unfortunately, no legal budget has been set

Are you saying I can stand my ground and say no to having to front any money as it's not my personal liability to pay money to the estate and if the other executor wants this to happen he will then have to pay?

I haven't sought legal advice on the letter I've signed yet and it's a good question about what happens if there is no money as I'm not sure either.

 

[James D. Ford - Solicitor]

Hi, acey

I need to review the letter you have signed before I can confirm that you have no personal liability.

My assumption is that you would have signed in your capacity as Executor of the Estate, rather than as an individual... and, therefore, will most likely not be able to be held personally liable.

Kind regards