“You were laughing while you destroyed your, and your sister’s, inheritance. Now, the world is laughing at you for your stupidity”….this is a comment made by County Court Judge Michael Cahill when sentencing two brothers for charges of theft and criminal damage after destroying their former family home. The attempt at stopping their sister benefiting from their mother’s estate resulted in a loss to the estate of an estimated $60,000-$75,000 and the brothers were fined $10,000 each after admitting to intentionally destroying the family home in Murtoa, Victoria.
Background
In December 2013, the matriarch of the family died and in her Will she appointed her daughter as her executor. She left her estate, after payment of certain gifts in equal shares to her daughter and two sons. The brothers challenged the appointment of their sister as executor on the grounds that she had failed to pay legacies due to their children however the parties settled the dispute and the sister continued to act as executor.
The family home in Murtoa formed part of the estate and the executor had organised for the property to be sold at auction on 29 March 2019. The day prior to the auction, the brothers travelled from Queensland and damaged the home by spraying graffiti on walls, removing the stove from the kitchen, removing the rainwater tank from the yard and then using an excavator to break down a wall of the house, the verandah, a tank stand and a fence. The result of the damage was that the property, which had originally been estimated to sell for $75,000-$90,000 eventually sold for just $7,500.
The brothers were entitled to two-thirds of the value of the property which they destroyed and their sister was entitled to the remaining one-third however, after the destruction of the home, the sister was estimated to have lost $20,000 – $30,000 of her inheritance.
What does this mean for you?
Families don’t always get along and sometimes the death of a loved one can exacerbate tensions to a point where action is taken, legal or otherwise. However, it is not in anyone’s interests to destroy or damage property as it could result in serious consequences as seen in this case. Not only does it result in a loss to the estate and potential inheritance, it can lead to criminal charges and civil liability.
In a situation where you are unhappy with an executor or wish to challenge a Will, you must seek legal advice to ascertain the best course of action and you should not act without first consulting your lawyer.
Removal of an executor
If an interested party believes that an executor has breached their duty as an executor, they can make an application for an Administration Order which removes the executor and provides for an independent person to administer the estate in their place.
Challenging a Will
There are several ways in which a Will can be challenged. The first is if you believe that you have been left out of the Will or if a provision made for you in the Will is not what you had expected. These claims are generally knows a ‘family provision claims’ and can be made by:
- A spouse (current or if not divorced);
- A domestic partner;
- A child (including some step-children); and
- In some circumstances a person who was living with the deceased.
Another way to challenge a Will is if you believe that it is invalid. There are four main ways of contesting the Will to have it declared invalid:
- Undue influence – should you believe that the deceased was pressured into making his or her Will and its provisions do not reflect what the deceased would have intended;
- Lack of capacity – should you believe that the deceased has not had capacity to make the Will (eg: dementia, Alzheimer’s, etc);
- Coercion – that the deceased was forced into making the Will
- Fraud – that the Will is a forgery
Taking things into your own hands with a bit of ‘self-help’ is very unlikely to ultimately result in you helping yourself at all.
How can Nevett Ford help?
At Nevett Ford our wills and estates lawyers in Melbourne are able to help you understand your legal rights. If you have any queries regarding your inheritance under a Will, the duties of an executor or challenging a Will, please contact us at melbourne@nevettford.com.au or phone us on 03 9614 7111.