A shockingly bizarre and distressing situation

Discussion in 'Legal Issues' started by GX1, 4th Feb, 2020.

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  1. GX1

    GX1 Member

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    Hi there,

    I'm trying to gather information for a very close friend in an utterly bizarre situation.

    My friend is in their 20s and their father has recently passed away. My friend was the only child of his father (the deceased), and they lived together in the deceased's home. Although the deceased had a couple of health issues, it was a sudden and unexpected death and very shocking. My friend is trying to grieve this whole situation. The mother of the son had divorced the deceased more than 20 years ago.

    Police notified my friend of the death of his father. Police also notified him there was a wife, who is claiming to be next of kin. How the police were aware of the wife, I am not sure. The wife has never lived with the deceased, nor has the wife has ever lived in Australia.

    After some research, it was discovered the wife has come to Australia in 2012/2013 for a holiday, and gotten married to the deceased, and headed back home to her SE Asian country of origin. It is possible they stayed in contact through the internet, but the son is sure that the wife never visited the deceased in Australia again and he had never met the woman. The deceased had made it clear verbally that he expected to leave everything in his will to his son in the future (but no one expected him to suddenly pass away in his early 60s). My friend is not even sure if there is a will.

    Shortly after the death of the deceased & before the funeral, a window was broken into the deceased's home when the son was not at home that night. I am unsure of what was taken from the home. The neighbours reported seeing a man and a woman at the property when the son later tried to investigate the cause of the broken window - the neighbours were super supportive and happy to call the police if they noticed these people trying to enter the deceased's home again. Unfortunately the son has not yet report this break and entry to the police (I have encouraged him to, as soon as possible), but he did get the locks to the house changed. After subsequent events, it seems it is most likely the wife that has broken into the property. She has never lived in Australia but suddenly appears soon after he "husband" has died. She doesn't knock on the door, she breaks a window when no one is home.

    When my friend became aware that there may be an issue with this woman (following the break-in and lack of getting in contact to express sympathies), he attempted to put a caveat on the property. (This was at the advice of another friend). Unfortunately, he was told he was not allowed to do this without a death certificate. He was also told he couldn't put a caveat on because the cause of death was yet to be determined (deceased's body was sent to the Coroners for investigation).

    My friend is on a low income/Centrelink recipient (studying at TAFE and trying to supplement if with casual work - when he can get shifts) and somehow paid for the father's funeral (I think they may have had to borrow money to pay for this, but haven't clarified that point). He doesn't even have a working car.

    A lonely Christmas without his father comes and goes. Things seemed to quieten down until last Tuesday (one week ago), he suddenly finds there are locks on the house that have been placed by State Trustees. He can't even access his belongings or sentimental items in the house, and he is effectively made homeless (!). He has since had to couch surf and stay at friends' houses.

    He calls State Trustees today and is told that the wife has authorised for the house to be sold in two months time (!!). The wife isn't even in the country but reportedly was able to produce a marriage certificate. This is quite shocking and unexpected.

    There was some mention about an upcoming application to a court, I suspect to proceed with the sale? The details on this are a bit fuzzy (I can clarify tomorrow if more info is needed).

    This friend is in way over his head. He has never had any legal issues before. He was dependent on the father, and after years of unemployment/repeated difficulty finding work, he was studying a course at TAFE and trying to carve out an adult life for himself.

    Suddenly he is grieving his father, has no siblings for support, and someone he has never met - a total stranger, has entered his life (and never bothered to meet him - she wasn't at the funeral) and it seems trying to sell the house out from under him. He even has his father's ashes.

    How is it that the coroner let him access the body for the funeral but then the State Trustees can take the house away?

    My friend went to legal aid but it seems they don't deal in wills/estate type issues. He subsequently visited a lawyer and he said it seems, if he wins, the lawyer will take fees that may end up being half the value of the property (this is my friend's words, not mine) - I am sure there must be lawyers that are more affordable. Does this sound right?

    Who should someone in this situation be talking to? Should he get legal advice elsewhere? Can he address this issue without getting costly lawyers involved? I understand there is a lot at stake, but someone in this position, with no funds, I am not sure how he will even be able to afford a lawyer.

    Anyone able to suggest how I could point my friend in the right direction to resolve this issue?
     
  2. TMNT

    TMNT Well-Known Member

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    Ahhhh, how low many will stoop for money...

    Maybe see whats missing,that would be a huge indicator of who broke in

    Best of luck
     
    Last edited by a moderator: 4th Feb, 2020
  3. GX1

    GX1 Member

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    Gee I would say its maybe $500,000 to $550,000? That is a guess based on the suburb. I have asked my friend if he can disclose to me what was taken.
     
  4. GX1

    GX1 Member

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    It seems that friend could not see that anything had been taken, but furniture and items were moved around.
     
  5. Gestalt

    Gestalt Well-Known Member

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    He should see lawyers who specialise in estate litigation. He may have a claim for maintenance out of the estate. There could be other potential claims as well.

    I would expect that the lawyers would be prepared to do an initial consultation with him for no cost.

    It is common (but not inevitable) for legal costs relating to a disputed will to be paid out of the estate. The lawyers may (I emphasise may) be prepared to take on the matter on a no win no fee basis, depending on the strength and quantum of any claim.

    The intital consultation will allow the lawyers to advise if he has a potential claim and whether they can accomodate a no fee arrangement.

    I emphasise that he should only see lawyers who have a strong practice specialising in estate litigation. Don’t see the nearest solicitor on the corner.

    I’d suggest contacting the Law Society in his state and asking for a list of practitioners with Specialist Accreditation in estate law. Some further research on each firm’s website should then help with narrowing the shortlist to those who have significant experience in estate litigation.

    Best of luck.
     
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  6. Trainee

    Trainee Well-Known Member

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    Is there a responsible objective adult in the picture who can help your friend navigate this? All your info is second hand, filtered through your friend, who doesnt sound capable of handling any of this.

    someone needs to hold his hand through the legal process. For example, what happened to probate for the father?
     
  7. GX1

    GX1 Member

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    Trainee, this is why I'm trying my best to help - it seems this individual is rather isolated, with little social supports besides the few who are taking pity and offering temporary couches to sleep on. Not all who are offering couches to sleep on are exactly mentally stable. Bizarrely, he was seeking emotional support & guidance from an older woman who actually was simultaneously having a psychotic breakdown and is currently hospitalised for same. This older woman has incorporated the situation into her delusions and I am suggesting he does not seek her advice from her onwards. It is not helpful for either party, and may waste precious time.

    I feel for my friend because they have no siblings, and appears to have no supportive extended family. I am hoping that with the combination of a lawyer, I could perhaps provide some friendship/ emotional support as he grieves and seeks assistance. I think a psychology referral might potentially be helpful also.

    I hope this situation is a reminder to everyone who reads it - please get your affairs in order, for your family's sake!
     
  8. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    This is pretty straight forward. He needs to seek legal advice about putting a caveat on the estate so the wife cannot be appointed executor or administrator, unless she already has. He can then fight it out about who takes control.

    Then he needs to find out if there is a will or not. If not intestacy laws apply so he will need to find out what these are. If nsw law likely he will share with the wife plus she might get a bit extra.

    He can also make a family provision claim and try to get a larger share.

    Seek legal advice asap.
     
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  9. SeafordSunshine

    SeafordSunshine Well-Known Member

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    Ok I am not a solicitor.
    I would be breaking back into Dad's my house and sleeping in my own bed.
    (Possession is 9 tenths of the law.? )

    Don't agree to be kicked out!

    I hope he's ok.
     
  10. SeafordSunshine

    SeafordSunshine Well-Known Member

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    "It seems that friend could not see that anything had been taken, but furniture and items were moved around."
    Were they looking for something eg. will?
    Don't wait for it to hit the wall. report the break in to the police a.s.a.p.
    I hope this helps!
     
  11. willair

    willair Well-Known Member Premium Member

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    Just tell your mate to draw a line in the sand,report the break-in too the Police for a start then tell him to employ some-one like Terry or ring up the crying 6--30 i'm a xxxxxx victim shows on the TV each night and see ''IF'' as they will help as they will jump on this ..

    Please tell him don't break into the house,the public trustee take this very serious -everyone thinks that they will never die but between TAX and Death both always happen in the end..

    Tell him don't blame anyone,as all mistakes can be fixed..imho..
     
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  12. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    It's not his house, breaking in would be tresspass, a criminal offence, plus open to allegations of stealing
     
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  13. d_walsh

    d_walsh Well-Known Member

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    Is it trespass if he occupies it as his home / primary residence?

    There has been no proper process or notice issued to obtain vacant possession.Simply changing the locks seems insufficient. I would think he has a reasonable and legal right to be on the property as the occupier.

    Also see:
    - Burglary, Home Invasion and Trespass (Vic) - Go To Court Lawyers
    - SUMMARY OFFENCES ACT 1966 - SECT 9 Wilful destruction, damage etc. of property (note: crimes acts are state based)

    Lawyer and caveat is a must.

    Also suggest your friend investigates the marriage. Hard to challenge, but not impossible in certain circumstances.
     
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  14. d_walsh

    d_walsh Well-Known Member

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    Stealing would be extremely difficult to prove. Complaining party would need to prove any items are the father, not son’s, in circumstances where they lived together, probably jointly purchased items etc. can’t steal your own items. Son however would need to show he lives there (licence, bills etc).

    I think any claim by state trustees or wife to items is a civil matter and would need to be dealt with as part of estate affairs.
     
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  15. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    breaking and entering wouldn't be advisable - although you cannot steal your own property, these disputes can be ugly and can turn over who claims ownership to what assets. There is also the possibility that the other party can allege things were stolen even though those things were never there in the first place.
     
  16. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    There is probably no lease or licence in place so I don't think there would be any legal right to be there. I am sure this sort of thing would pop up pretty often, but I am not sure what the law is in this regard.
     
  17. d_walsh

    d_walsh Well-Known Member

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    I’m not sure I would agree with that Terry. There is at the very least an express or implied Right to Occupy.

    Another avenue for OP’s friend is to call his local police station. Tell them he was living his father who passed away, someone has changed locks while he’s still living there and he’s going to get a locksmith to get access. He thinks it’s a civil matter and he’s not been served with any eviction notices and there’s no court orders that have been produced. They will tell him whether it’s a problem.
     
    Last edited: 7th Feb, 2020
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  18. Paul@PAS

    [email protected] Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    Personally I would contact the public trustee with that information (rather than Police) as they can actually assist and may be quite unaware of the right to occupancy and personal possessions etc. Police are fairly powerless in these situations as they cant make decisions concerning civil law. They may suggest seeking advice at the local court. Court registrars may also be able to refer to various community minded practices or community groups who may support and assist with legal support. I knew of someone who was supported by the Salvation Army who had a friendly lawyer who was able to assist a similar situation to avoid homelessness. The affected person made a successful claim on the estate for a right of tenancy and some financial assistance. The solicitor also was able to claim all the deceased persons super rather than it hit the estate.
     
  19. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Before doing something that could potentially be a crime it would be good to notify the police (unless you are actually a criminal!) as they are less likely to be alarmed when called by neighbours etc.

    Debt collectors tell police when they are going to take someone's car or lawfully enter premises etc.
     
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  20. Paul@PAS

    [email protected] Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    Yeah guys with guns dont like surprises