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Ask Deborah Awyzio Your Own Question
Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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I am the sole beneficiary of a friends estate.The estate was

Customer Question

I am the sole beneficiary of a friends estate.The estate was handled by the Public Trustee office in Newcastle. I received $130000 from the estate, $110000 of this was from my friends mother's estate. (she died about 10 months before my friend). I was told my friend had received a cheque for $110000 from his mother's estate, but 2 years on I was told it hadn't been cashed so another cheque was given to his estate.This cheque was sent by his mother's solictor to the Public Trustee in February 2014.
I received this money from the estate in November 2014 and have now spent all the money, much of it I spent in Sri Lanka where my friend was closely involved in volunteering and caring for 24 orphans. (He died while in Sri Lanka to visit the orphans)
On Thursday (28/4/16) I received a phone call and then several emails of demand from the mother's solicitors, saying that the $110000 paid from their trust fund to the estate in February 2014 was a mistake and should never have been paid. They have threatened to put a caveat over my property until I repay all of the $110000. Where do I stand, I have a morgage of $190000 over my home so obviously don't have a spare $110000 to give them. If I hadn't received the money in the first place I would never have spent the money in Sri Lanka.
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good EveningMy name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advice but a guide to assist you.It is very hard to say. What did his will say and were you entitled to the money?Do you have copies of the Probate of is mothers estate and his estate?
Customer: replied 1 year ago.
I was entitled to all monies from his estate and Garry was entitled to his one third share of his mother's estate.
His mother's solicitors are now saying that Garry (my friend) cashed the original cheque in 2012. He died January 2013. Garry was an alcoholic and gambler I would not be surprised if he had cashed the cheque and spent it all before he died 3 months later.
BUT When the public trustee sent a request to his mother's solicitor to find out if the cheque had been cashed and at which bank he received a reply saying the cheque hadn't been cashed. Hence they sent a new cheque. Now 2 years later they say they made a mistake and want it all back.
Expert:  Leon replied 1 year ago.
Good EveningHave they provided you with any evidence that he was paid out the estate of his mother in 2012?Do you have a copy of the letter the public trustee received?You can rely on that. They have to provide you with evidence. You should not speak to them yourself let the public trustee deal with it as they were the ones that acted in his estate.
Customer: replied 1 year ago.
No evidence that he was paid the original cheque but told I would receive this evidence next week. Tend to believe that the cheque was probably cashed by Garry.
I don't have a copy of the original letter from the solicitor to the Public Trustee(will be asking for this on Monday) but an email sent to me after the cheque was received by the Public Trustee in February 2014 stated that a cheque was issued to Garry in October 2012 however following enquiries by the Public Trustee, the mother's solicitors discovered that the original 2012 cheque was unpresented and therefore they reissued it.
2 years later they have now discovered that the original cheque was cashed.
How can they have got away with their trust account not being audited for over 2 years. If I had know that Garry had already received the money I would have immediately returned it to the solicitors.
Customer: replied 1 year ago.
Will I receive a reply tonight or will you get back to me tomorrow?
Expert:  Leon replied 1 year ago.
Good EveningYou have to speak to the solicitor that acted for Garry's estate. You should have the solicitor request evidence of the cheque being cashed. It is there mistake but you cannot profit from it. But I believe you can negotiate to reach an agreement with them. I agree with you, about the auditing we check it each month. They cannot have balance if they did not know. This is my concern. I hope this makes sense?
Customer: replied 1 year ago.
Probate and Intention to distribute the estate notices were put into the paper, they did not respond to these. Garry's estate was administered by the Public Trustee not a solicitor
Customer: replied 1 year ago.
Is it a legal requirement that their trust fund is audited by May each year. The audit report then needs to be sent to The Law Society.
Expert:  Leon replied 1 year ago.
Good MorningAll of this is in your favour.They also have to balance the trust account each month not once a year.