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Where do I go to get the probate office/supreme court to take

 
Sydney-Lawyer's Avatar
  • Answered by:Sydney-Lawyer
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Customer Question

Where do I go to get the probate office/supreme court to take action against the power of attorney and executor (same person) of my mothers estate who has borrowed (stolen) $120 thousand from the estate and has yet to repay the money to the estate. The remainder of the estate has been distributed excepting for this $120K. It has been 9 months since my mothers death. The debt is acknowledged in writing by the executor (my sister) and no further committments have been made to repay the debt during this time. The money has been invested in a bad investment overseas and I consider is a very poor risk of being repaid.

Regards,
Adrian Hudson XXXXX
Mandurah WA
0417 298 992

 

Optional Information:
State/Territory: WA

Already Tried:
Consulting a local lawyer who advised the ultimate step was to present a case to the Master of Supreme Court to present all accounts, records etc of the estate and its POA management, to get a judgement against my sister. This encroaches into large expenses however.

Submitted: 286 days and 21 hours ago.
Category: Australia Law
Value: AU$71
Status: CLOSED
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Expert:  Sydney-Lawyer replied 286 days and 20 hours ago.

Good Afternoon,


did she borrow the money from your mother?

Customer replied 286 days and 20 hours ago.

No the money was not borrowed. It was removed from my mothers account during the period my sister had taken out Power of Attorney and my mother had no knowledge of its removal.

Accepted Answer

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Expert:  Sydney-Lawyer replied 286 days and 20 hours ago.

Good Afternoon,


You would have to show that your sisterDid not act with due diligence in looking after and maintaining your mothers estates under the power of attorney while your mother was alive.

The application would have to commence in the Supreme Court and it would be part of contesting the will so that your sister does not receive her benefit and for her to repay the money into the estate before the will can be administered.

It would also seek orders that should be removed as executor because she has conflict-of-interest in looking after the benefits of the estate as she would be the respondent in your application.

There is no Acts passed by Parliament that deals with people acting improperly whilst they hold the power of attorney is the common law applies which states that a person who has a power of attorney must act diligently and in the best interests of the person who granted them the attorney.

It is not something that you can do on your own particularly because it involves your sister's role as executor and the estate would have to be amended and the will changed by the court if your sister cannot pay back the money.

If you do not already have a solicitor practices in this area of law I would suggest that you contact the Law Society of Western Australia and get a referral to someone they can help you.

Their website is as follows:

http://www.lawsocietywa.asn.au/

Because the estate has already been distributed you will also need orders for the estate to be frozen in the hands of those who hold it and if it is in liquid funds, cash, for it to be paid into a trust account until this matter is resolved.

The following link should be of interest to you as it summarises the law as it stands in Australia in relation to powers of attorney and then not being properly used.

http://www.austlii.edu.au/au/journals/SydUPLawBk/2011/12.html

Point 10.6 Is of particular interest.

Do not concern yourself with the fact that it discusses matters in other states as all Courts of Australia look decisions made elsewhere in Australia when deciding cases in their own states.

I hope this is of assistance. If you have any further queries please do not hesitate to contact me.

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Expert TypeSolicitor
Category: Australia Law
Pos. Feedback: 96.1 %
Accepts: 16667
Answered: 7/2/2012

Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

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