Case Review: Daughter claims Executor Ran Trusts Improperly

A mother had died leaving a substantial amount of money, which she had inherited from her husband.

The inquirer and her 5 siblings were all equally entitled under the trusts set up in the Will, but the inquirer wanted to contest the will.

The first complaint is that proper provision has not been made for the inquirer as the mother tied all of the money up in trusts for her six children which made it difficult for the inquirer to receive any benefit.  The trusts were discretionary trusts, and the trustee had total discretion as to how much she would be given, and there was no guarantee that she would ever be given anything.

The trustee is a Bank and so far the inquirer had not received a cent from her mother’s estate despite the fact that it is now some six years since her mother died.  Her brothers and sisters have each received substantial sums from the trusts set up in the Will for them.

The first issue is whether or not the Bank has exercised its discretion properly.  There could be a claim that the Bank has not acted properly in considering the interests of all of the beneficiaries when making any decision as to whether to give any money to the beneficiaries.

The second issue is whether the trustee has also acted improperly by dividing up the estate into 12 parts, not the 6 parts that the mother had originally seemed to have intended.

The mother had 6 children and everybody assumed that the estate would be divided into 6 equal parts, but after the mother died, the Bank then divided the estate into 12 trusts, one for each of the 6 children, plus an equal share for each of the 6 grandchildren.

The inquirer does not have any children and therefore her brothers and sisters who have got children will receive  a lot more money going to their own families than to her.

The preliminary advice from the barrister is that the Bank may not have acted properly in exercising its discretion when allocating money to her or making a decision not to allocate money to her, and also when dividing up the estate into the 12 equal shares.  The inquirer may have a claim for damages.

It is 6 years since the mother died, and if the inquirer also wanted to contest the Will, it could be difficult for her to obtain the consent of the Court to making a late claim . If she was successful she might claim that her mother should have guaranteed her a definite amount, rather than leaving everything in discretionary trusts that guarantee her nothing.

Case Review: Step-daughter cannot establish dependency

This is an enquiry  by a disappointed step-daughter against the estate of her step-father who died leaving a Will which left virtually everything to his natural daughter.

The query was raised within the required time limits, and the inquirer wanted to know whether she could claim, as her step-father had promised her a substantial lump sum on his death.

She did not have a claim as there was no dependency upon the step-father; the step-daughter having lived separately from him for many years.

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.