- When one parent remarries and leaves the estate to the new spouse.
- Power of Attorney sells home and buys a new home in his name only.
- Children could not claim on their mothers’ house as she was no longer on the title.
- 12-month window for Will Dispute nearly exhausted in negotiations
- Notional Estate
Our firm successfully represented two sisters who were left out of their mother’s Will. Their mother contracted a terminal illness and died in her 50s. Each adult daughter had a young family. The mother had remarried and had made a mutual Will with her second husband in terms that she left everything to her husband, and that on his death he would leave everything to the two daughters. The husband made a Will leaving everything to his wife, and then to her daughters.
In addition, the wife granted the husband a Power of Attorney over her financial affairs.
Once the wife became ill and was no longer able to be cared for at home she had be removed to a nursing home. While she was living in the nursing home and without her knowledge her husband, using the Power of Attorney, sold their home and with the proceeds of sale purchased a new home in his name only. He did not inform his wife of his actions.
The daughters only learned of these events after the death of their mother, when her estate revealed that she did not own her home.
During the next 11 months the husband continued to promise the two daughters that he would come to an accommodation and provide for them, however, nothing eventuated and the daughters sought our expert advice. It was important that they did so as their right to bring a claim on their mother’s estate would have lapsed after 12 months, and they would have been robbed of their inheritance if they continued to let the negotiations with the second husband prolong for a further month.
Heckenberg Lawyers was able to file an application on the eve of our clients’ rights expiring and to preserve their rights of inheritance on their mother’s estate.
We were then able to conduct a Court case where we were able to reveal the transactions by which the mother’s real estate and bank accounts had been taken by the second husband for his own benefit and the purchase of his new home.
This involved the concept of ‘notional estate’, whereby evidence is presented to the Court that although the property no longer forms part of the deceased person’s estate (in this case, as it had been taken prior to her death) it can under certain circumstances be identified and brought back into the estate for accounting purposes, which we were successfully able to do in this case.
We are pleased that we were able to achieve a successful result for both our clients and they were able to secure their inheritance, something which their mother had always intended them to receive but they were in very real danger of losing completely.
Heckenberg Lawyers are recognised as leaders in the law of contested estate litigation, disputed Wills and Probate law. Deceased estate disputes and cases where people have been left of out of the Will are often factually complicated and involve precise legal principles. We have been specialising in these areas of the law for over 20 years, and provide cost-effective and expert legal advice.
See our Will Dispute Lawyer & Contesting Wills page for more information on the Wills & Estates services we provide or contact us for advice specific to your situation.
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