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Case Review: Daughter living overseas claims Australian assets and foreign assets

The inquirer is concerned about the death of her father who migrated to Australia some years ago from France.

On his death he had a number of properties in Sydney, and many other properties back in France.

The inquirer lives overseas and did not see a lot of her father but was still close and he had supported her financially over the years, so there seems to be sufficient family connection for her to claim.

However her brother who lived in Sydney turned the father against her daughter, and the father left her out of the Will.  The father left everything in Australia to his son’s children, but did not mention the assets in France in his Will.

The estate’s size is approximately $4m.

The inquirer has financial need, and the key thing is to see what assets can be claimed if she contests the Will.

Although NSW law purports to extend to real estate overseas, the law of  France will determine who shall inherit  the assets in France and the law of NSW will deal with who takes ownership of the Sydney property.

Accordingly she can bring the claim in NSW to challenge the Will, and the assets in NSW will be available to meet her claim.

In relation to the properties in France, it will be up to the local law to determine what share, if any, she takes, and the NSW Court will not be able to vary that.

However in making its award in NSW, the NSW Court will of course look to what  money the daughter may be entitled to in France, and if she is sufficiently provided for from the assets in France, they may make a decision that she shall have no entitlement to anything from the NSW assets.

Case Review: Under-Age Children claim Notional Estate in NSW

The deceased is the mother of several minor children aged under 10, who died in New South Wales.

Under the Will everything goes to her husband, but the mother was almost at the stage of divorcing him, when she died.

She owned two properties: a rental property in her name and the family home that she held in joint names with her husband, which was the most valuable property.

The husband also had a property in his own name.

Under the Intestacy Rules the husband will stand to inherit over half of the rental property and the children will inherit the rest.

The husband will also take full ownership of the family home as the surviving joint proprietor.

An aunt wants to know whether she can make a claim on behalf of the children for a greater share of their deceased mother’s estate, so that the estranged husband gets less.

Under the Intestacy Rules it is possible for this to be done.  As the mother had died without a will, rather than challenging the Will, the action would be to challenge the Intestacy Rules.

Clearly the rental property which is in the mother’s name is her property, and can be used to provide money for the children, but the children will have no direct claim over the estranged mother’s share of the family home  that passes to their father as the surviving joint owner.

In relation to this jointly owned property, if the children are successful in making a claim for further provision against the mother’s estate and the value of the rental property is not sufficient to pay out an amount that the Court ordered, then the court may order that  jointly-owned property be made available to boost the size of the estate and therefore help to meet the payment to be made by the mother’s estate to the children.

Care needs to be taken to ensure that in all of the circumstances that the children have financial need, as the father will no doubt claim that the children do not have financial need.

The claim must be brought within time.  Even though the rental property in the mother’s name is not of great value, because of the availability of the notional estate that may be retrieved, this should be a successful claim.

Case Review: Step-daughter who was treated like a daughter cannot claim from step-mother’s estate

The inquirer is an adult woman who was brought up by her step-mother who has recently died.

The inquirer finds that she is not provided for under the Will.

In Western Australia it is possible for step-children to claim against their step-parent’s estate, if they were able to show that their natural parent left to the step-parent an amount in excess of a sum specified by law, when the natural parent died, prior to the step-parent dying.  The specified sum varies from time to time but it is currently in excess of $400,000.

In this case, her natural father had died 25 years ago but the problem is that the value of the assets that he held at that date are well below the current limit and therefore the inquirer cannot claim.

Had the father recently died, when the value of the estate that he owned was much higher, the inquirer may have been able to claim.

Simply speaking, in this case the inquirer fails to qualify to bring a claim against the step-parent’s estate under Western Australian legislation. 

Case Review: Sister Takes Father’s Estate Before Death

The inquirer, an adult son has found that since his father died, that nothing has happened in relation to winding up the estate.

He contacted his sister.  The sister had a Power of Attorney over the father’s estate, and said that all of the money had been given to her by the father before the father died, and there was nothing left.

The father had moved in with the sister, sold his house, and perhaps all of his funds had been pooled with those of the sister.

The sister also said the father had given her a gift of $200,000, and had employed her and paid her $900 a week for looking after him.  The inquirer also believes that the sister’s husband was  receiving a carer’s pension for looking after his father-in-law

Under the legislation for Powers of Attorney the sister should be liable to repay any monies misappropriated, but this can be difficult to prove, and it can be very hard to trace funds.

This is not a Will dispute problem, but more a matter of fraud and abuse of a Power of Attorney.

If funds can be claimed back and they go back into the estate, then perhaps the inquirer can contest the Will successfully, so long as he has financial need and had a sufficiently close relationship with the father.