Dad Promised us the house ! Constructive Trusts and Promissory Estoppel

In situations where a promise has been made and acted upon over a period of years it is sometimes possible to enforce that promise even if it not in writing.
In Harrison -v- Harrison, a recent Supreme Court of Victoria case,  dad died and left everything to one Son. In order to convince his Sisters not to dispute the will, the Son promised the Sisters "I will look after you....everything will be ok....dad's trusted me to do the right thing and that's what I'll do...." (and other words to like effect).
The Sisters relied on these words and refrained from disputing the will within the six month time limit.
The Sisters eventually realised that their Brother had no intention at all of "... doing the right thing."
No extension of time was possible because the estate had been fully distributed by the time the Sisters finally realised that the Brother was in fact not going to do the right thing at all.
The Sisters went to Court pleading that the Brother had made them a promise and that they had relied upon this promise, to their detriment, by not contesting dads will in the first place.
The Court agreed and found that the Son who had been left everything now held the Real Estate that he had inherited,  UPON TRUST,  as to part, for his Sisters.
Evans -v- Evans was a similar New South Wales case inasmuch as it also involved a promise and the promise being relied on. In this case dad bought a house and let his Daughter and Son in Law move in rent free. He promised them both that the house  was "...your home" and allowed them to do renovations and improvements over the years. Eventually, in 2007 when the Daughter asked her dad to transfer the house to her and her Husband, dad refused.
So the Daughter took dad to Court, proved he made, and repeated,  the promise, proved that she relied upon it to her own detriment ( by spending heaps of money on the house) and the Court agreed.
The Court ordered that house be transfered to the Daughter and her Husband.
The will in this case could not be disputed in the normal way because dad hadn't died yet.
This line of cases known as "Proprietary Estoppel"  or "Constructive Trust" cases have been consistently used to provide relief to claimants when, for various reasons, it is not possible to contest the will or estate of a person in the normal manner, pursuant to the Admnistration and Probate Act.
Interestingly, the Courts have found that the vagueness and oral nature of the promise relied upon will not necessarily cause the claim to fail.
If someone makes a promise and another relies on that promise to their detriment, the Courts in Victoria will provide relief in appropriate circumstances.
Harrison -v- Harrison provides a lengthy and comprehensive dissertation on the principles of Promissory Estoppel and their development over the years since the landmark case of Dillwyn -v- Dillwyn  in 1862.

Beneficiaries rights and Executors duties

Receiving an inheritance can bring a range of responsibilities and emotions, often when grieving over the loss of a loved one. If you've been named as a beneficiary in a family member's or friend's will, it's important to understand what to expect from the estate settlement process and to carefully consider your options.
An executor is the individual or institution named in a will who is responsible for administering the estate.
The executor may be someone you already know, perhaps a family member or friend. The overall responsibility of the executor is to administer the estate according to the deceased's final wishes expressed in the will, and according to  law.
Ideally, communication between an executor and the estate's beneficiaries is open and smooth throughout the estate settlement process.
In some cases, however, there may be tension between beneficiaries and the executor or disagreements about the will itself.
It's important to understand the potentially overwhelming nature of the executor's duties. Executors can be required to undertake dozens of individual tasks and deal with numerous government agencies and professionals to carry out the estate settlement.
Executor duties can take months or sometimes even years of work. Executors may struggle with family tensions, time constraints and personal liability when they may also be grieving a personal loss. They may have been named executor because of their role in the deceased's life or because of their profession, but if they have no prior experience settling an estate, it may be a daunting prospect.
As sole beneficiary or beneficiary of some or the entire residue of the estate (the remaining portion after specific gifts have been removed), you are entitled to:
1. See full and accurate estate accounts on a regular basis.
2. Approve the estate accounts.
3. Request an explanation if you are not satisfied with the accounts.
4. Be notified when the executor applies to court for probate .
5. Receive your inheritance in a timely way, while understanding it's not uncommon for even the most straightforward estate settlements to take from several months to a year or more to complete.
6. Apply to the court to remove the executor if you feel the estate settlement is not being carried out in a responsible manner.
7. Review and approve the executor's level of compensation, which can be set by a court if necessary to resolve any dispute, unless it was set by the will.
If you have concerns about the estate settlement process, it's important to discuss these concerns with the executor as they arise. By addressing issues early, you can help ensure that concerns don't multiply and undermine your relationship with the executor. It's in everyone's best interest to resolve issues that relate to the estate as simply and as quickly as possible.
When you are informed that you will be receiving money from an estate, especially if it's a significant amount, it's a good idea to take some time before making any decisions. An inheritance may have a significant impact on your life, so you may wish to consider your options carefully before deciding what to do with it.

Solicitors negligence thwarts adopted Son

An adopted son at war with his parents’ natural children in the U.K. over his £70,000 inheritance faces losing it to them because their mother and father signed each other’s wills by mistake.
Orphan Terry Marley was ‘unofficially adopted’ at the age of 15. He spent the next 30 years living with Alfred and Maureen Rawlings and caring for them in their old age.
They intended to reward his devotion and kindness by leaving everything to him when they died, and disinheriting their two natural sons.
After their deaths it was discovered that Mr Rawlings had signed the will belonging to his wife and she had signed the identical will belonging to her husband in 1999.
This made both wills invalid and meant that the entire estate went to the natural children after all.
Mr Marley, 50, has launched a court battle to fight for his inheritance and, after losing to the sons in the High Court, he has now taken his case to the Appeal Court.
It has never been explained why the couple cut out their sons, Terry Rawlings, 49 – an acclaimed biographer of rock stars including Ronnie Wood – and his brother Michael out of their wills,  but lawyers for Mr Marley have argued that the court  should allow the couple’s wish to make him their heir.
The Rawlingses lived with Mr Marley in a house in Biggin Hill, Kent, from 1975, when they started looking after him, until they died. Their wills each left everything to the other partner and if the surviving spouse died then their adoptive son was to be the sole beneficiary.  The mistake over the signatures  – blamed on the solicitor – came to light when Alfred Rawlings died in 2006, three years after his wife died.
Teresa Peacocke, for Mr Marley, told the Appeal Court ‘there is no doubt whatsoever’ of the couple’s intentions in making their wills’.
She said: ‘There is no hint of fraud or any uncertainty or suspicion surrounding the preparation or execution of the couple’s wills.’ Miss Peacocke argued the court’s ‘paramount concern’ should be ‘to give effect to the known wishes of the deceased’.
However, Nicholas Le Poidevin QC, for the natural sons, said: ‘The fact is that  the late Mr Rawlings did not sign his will, and Mrs Rawlings did not sign hers, and so he died intestate.’
He argued the longstanding ‘formalities’ laid down for the making of wills should be observed and told the judges: ‘It is inevitable that some defect of execution will occasionally cause a deceased’s testamentary wishes to be frustrated.’
The failure to sign a will was more than ‘a clerical error,’ said the QC, who urged the judges to rule that the court has ‘no jurisdiction’ to rectify the couple’s mistake.
Deciding the case against  Mr Marley in the High Court earlier this year, Mrs Justice Proudman said: ‘Much as I regret the blunder I cannot repair it.’
Judgement has been reserved by the Appeal Court to a  later date.

Feng Shui lover fails at estate grab

Deceased property tycoon Nina Wang's multibillion-dollar fortune will go to the charity she founded after Hong Kong's top court refused to hear a final bid for the estate from Tony Chan, her former feng shui adviser.
The Court of Final Appeal rejected arguments today from Chan's lawyer John Katz that the case involves issues of great public importance and that new facts in the case might have affected the outcome of the trial had they been available. Justice Patrick Chan said the three judges would hand down their reasons at a later date.
The ruling brings to an end a five-year battle after Wang, once Asia's richest woman, died from uterine cancer in 2007. Wang herself fought her father-in-law, the late Wang Din Shin, for six years before the Court of Final Appeal awarded her the fortune, valued last year at $12 billion by lawyers for the estate's administrators, in 2005.
Chan had argued that Nina Wang left him the money through a 2006 will in part because they had been lovers for 15 years. Two lower courts awarded the fortune to Chinachem Charitable Foundation Ltd, founded by Wang and her late husband Teddy in 1988. Chan faces criminal charges including forgery and is scheduled to appear at a hearing next month.
"We are very happy with the result because they can now proceed with their charitable work," Keith Ho, a lawyer for the foundation, said after the ruling.
Supervision of the Chinachem Charitable Foundation was to be entrusted to a body formed by the Secretary General of the United Nations, the premier of China and the chief executive of Hong Kong, according to a February ruling.
The foundation would award Chinese prizes of worldwide significance, similar to that of the Nobel Prizes, in addition to its other charity projects, according to the judgment.
Katz argued at today's hearing that "the entire factual matrix is now different" after presenting new evidence that a witness may have told police a different account of what he and Wang had discussed about the 2006 will in contrast to a previous statement he had given.
Justice Roberto Ribeiro disagreed with Katz's reading of the police statement and said the witness' description had been corroborated by others.
"Do we need to reopen a 40-day trial to deal with this?" Ribeiro said.
The 2009 trial examined Chan's bid for Wang's property fortune after she died at age 69 in 2007. The trial included testimony from Chinachem staff, siblings, feng shui students, psychiatrists and handwriting experts.
Chan, who is married with three children, said he was hired by Wang in 1992 to help find her husband, Teddy, who had been kidnapped for a second time in 1990. Teddy Wang was declared legally dead in 1999 and his body was never found.
Chan dug holes at various sites owned by the Chinachem Group for seven years, and received about HK$2.1 billion ($270 million) from Wang between 2005 and 2006, according to a court judgment. His lawyers said the payments were intended to groom him for managing her estate.
Feng shui, literally translated as "wind and water," is a 5000-year-old Chinese practice of arranging the physical environment to harmonize with the daily lives of people who live within it. Feng shui masters used the practice to advise emperors for the best sites for their palaces and tombs.


From the Sydney Morning Herald

Choosing the right Executor

It is important to make the right choice of person to serve as  executor of your estate because the job has many responsibilities.

Many people put a great deal of thought into designing an estate plan and deciding how they want to distribute their assets to family and friends after they are gone. However, few people realize that an estate plan is only as effective as the people they select to carry out the plan in the role of executor of the estate. It is important to choose the right person to serve as the executor because the job has many responsibilities. If the person serving as executor is not prepared to discharge these duties faithfully, serious problems can result.

The Duties of the Executor

The executor has a variety of duties. These duties start with opening the estate. This requires filing paperwork with the Supreme Court to begin the probate process. It may involve notifying creditors that the estate is open. Failure to notify creditors properly can lead to problems with beneficiaries, heirs or creditors.

Making an inventory of  the estate assets and managing the estate are also important duties of the executor. The executor needs to take an accurate inventory of the estate's assets, including property, bank accounts, and retirement accounts, as well as any other investment accounts and personal effects. This process can be very time consuming, depending on the size of the estate.

The executor is also responsible for paying (with estate assets) any outstanding bills that the deceased owed at the time of his or her death, as well as collecting any money that was owed to the deceased and putting it into the estate for distribution to the beneficiaries. Additionally, if the deceased owned a business, it is up to the executor to carry out such duties as payroll distributions and the purchase or sale of business assets as needed.

The executor is responsible for filing a personal income tax return for the last year of the deceased's life and making sure that the estate pays any taxes due or receives any refund the deceased would have received.

Closing the Estate and Distributing Assets

The executor will have to prove to the Court that he or she has properly notified and paid all the deceased's creditors from the estate assets. Additionally, the executor must provide proof that he or she has satisfied all tax liabilities associated with the estate and the deceased's final year.

After closing the estate, the executor has the responsibility of distributing the estate's assets according to the terms of the will. If the executor handles this job poorly and does not explain things well, he or she faces potential lawsuits from heirs or beneficiaries who wish to contest the will - potentially dragging out the time and expense of the probate process.

Issues to Consider When Selecting an Executor

Because of the difficulties inherent in the role of executor of an estate, it is vital that a person choose the appropriate individual for the job when creating an estate plan. There are several questions that a person needs to ask when selecting an executor. Getting clarity on the answers to those questions will help in choosing a person able to carry out the duties successfully. The beneficiaries of the estate plan can then receive the estate assets in a timely manner.

Should you choose a family member? The benefit to having someone in the family serve as executor is that the person is probably familiar with the testator's assets and wishes for those assets. However, family members may not have the skills necessary to serve as an executor, in which case it is advisable to select a professional for the role, such as an individual advisor or trust company.

A person may be tempted to select an acquaintance who is close to him or her in age to serve as executor. However, as the testator ages, he or she needs to consider whether someone younger may be better able to carry out the duties and the likelihood that the testator's first choice for executor will predecease the testator.

People with more than one child may be tempted to name all of their children as executors, but unless the children all live very near one another and can work together without fighting, naming more than one person may cause many problems. All the executors' signatures will need to be on all documents associated with the business of the estate, which could cause hassle and delay if the executors live a great distance from one another or do not get along.

Cost Considerations and Making a Decision

Executors have the right to be reimbursed for their time from the estate assets. There are limits on the amount that an executor may charge for his or her work, often linked to a percentage of the value of the estate. Family members may be more likely to waive fees and only seek reimbursement for actual expenses such as travel.

Choosing the right person for the job of executor demands a great deal of careful thinking because of how complicated the job can be. It is important that a person creating an estate plan consider all of the aspects of the job when selecting an executor for his or her will so that the executor will be able to settle the estate fairly and efficiently.

Claims against deceased estates by intimate companions and lovers

The recent 2011 Victorian Supreme Court case of  Whitehead v State Trustees gives considerable pause for thought. In this case the Claimant did not live with the deceased. She was simply sleeping with him for around ten years before his death. Indeed she became pregnant to another man after the relationship with the deceased commenced. The deceased was nuts about the woman and promised to take care of  her and her child even though the child was by another man. The deceased never married and was much much older than the Claimant. The deceaseds will was very old and was made prior to his relationship with the Claimant. The Supreme Court awarded the Claimant the sum of $450,000.00  to enable her to purchase a suitable home. The Court awarded a further $400,000.00 to the Claimants 10 year old child even though he was not the child of the deceased.
Clearly this case is generous to the Claimant and puts further pressure on the boundaries of when provision will be ordered by the Court. Whilst one cannot now deduct that lovers will simply be automatically entitled after this decision, clearly, and subject to the evidenciary hurdles that the Claimant had to overcome, lovers are, in certain circumstances, going to make claims on the estates of deceased persons in the future because of the generosity of the Court in this decision.

Bank West Guide to deceased estates

http://tinyurl.com/3dfk7le