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After my mother left my father in the early 1970s he made

 
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After my mother left my father in the early 1970's he made out a new will and I understood my brother who still loved with him also made out a will. At some point the legal firm (in Gosford) split or partners bought each other out. Prior to my mother's death in 2005 I contacted the lawyers re unacknowledged letter to them adding codicil to my mother's will. At that time I was advised that my father had changed his will and that they did not have a will for my brother. My mother subsequently made out a new will with solicitor in Huskisson. My father died in 2009 and I was executor for his will. At that time I again asked about my brother's will and was told they did not have one on record. My brother died last November 30th and I again asked if they had a will (he had acquired brain injury and was not in contact with family at this time due to anger issues).
Again advised no will. As the eldest of his siblings and next of kin I went to a lawyer in Wollongong that I knew personally and asked if he would handle the estate. I went ahead and handled the funeral, met with social worker at St. Vincent's hospital, cleared out rotting food etc. from his flat.

The day before the funeral I got an email from Gosford lawyer advising that they had in fact found his will made out in 1973 making my father's youngest sister sole beneficiary and executor. As I had already started doing the work of the executor, and taking into consideration her health and the health of her husband and the fact that they lived in Central Coast also, (my brother lived in housing commission flat at Maroubra Beach) I with permission of the lawyer, continued to handle the things that needed to be done and cleared out his disgusting flat, etc. etc. I had to make three trips to Sydney including picking up his ashes, and a trip to Gosford in mid January to take all the papers needed by the lawyer to handle the estate.

I kept track of my mileage, time and out of pocket expenses and submitted this account to the lawyer. There was sufficient money in his estate to pay for his funeral, legal fees and my bill as he had inherited money from our father. My siblings and I were not worried about our aunt inheriting what was left. Last week I received a letter from the lawyer that my aunt is refusing to pay my expenses: no reason, no negotiations or compromise.

My question is:
is she able to just refuse to do this? is she able to receive the estate money without paying legitimate expenses for work done that she should have done as executor. The time I spent sorting through nearly 20 years of junk and papers to keep legal fees down surely should be taken into account. I should add that my two aunts who live on the central coast were very angry that they did not inherit anything from my father. Also, on the advice from the lawyer that my aunt was the person to make decision re disposition of my brother's ashes, I mailed the ashes to her as I was due for a knee replacement operation and did not want to drive to Gosford again as in some pain.

Thank you for any advice you can can give me on how I should proceed.
I sent an email to the lawyer in Gosford last Thursday with a list of questions but to
date have had no reply.

Carol Cruikshank, J.P. 0242-957131

 

Optional Information:
State/Territory: NSW

Already Tried:
noted in my email. thanks.

Submitted: 280 days and 22 hours ago.
Category: Australia Law
Value: AU$71
Status: CLOSED

Accepted Answer

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Expert:  Sydney-Lawyer replied 280 days and 16 hours ago.

Good Evening,


It is a difficult question to answer and I'm really sorry to hear about your loss and the way things have turned out.

As you are not the executor you are not entitled to claim reasonable costs associated with doing the job.

In relation to the cleaning of his unit the disposal of 20 years of junk this is an expense that would have been incurred by the estate and you are entitled to be reimbursed for your costs.

Having also notified the estate before probate was applied for of the expenses they should have been included in the application and you have a right to be paid.

Depending on how much they are, you can always lodge claim against the estate with the Supreme Court to repay the money.

This will have the effect of freezing the estate and no one will receive any money until the dispute is resolved.

I do not believe that you have a right to make a claim for provision of the law will but that may be something that you may try and get some more detailed advice on.

Section 57 of the succession act which I have attached below sets out who are eligible people that can make a claim if they are not provided for in the will.

http://www.austlii.edu.au/au/legis/nsw/consol_act/sa2006138/s57.html

I do believe that you have a right to claim the expenses you incurred against the estate and they should be paid.

Whether you choose to pursue them in the Supreme Court against the estate will be dependent on the amount and if you wish to go down that path.

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

Having answered your question I would like to explain how I am paid for my work. The rating given by you, for my answer will decide whether or not I will be paid for my work.

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Expert TypeSolicitor
Category: Australia Law
Pos. Feedback: 96.1 %
Accepts: 16640
Answered: 7/4/2012

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

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