Disclaiming & Intestacy

Jean Sharp died intestate in September 2011. She had three children, two of whom Adrian Roozen and Vanessa James survived her. If you die intestate your family or friends would have to apply to the Supreme Court for letters of Administration. The procedure is similar to that for obtaining a grant of probate.

A grant of Letters of Administration allows the administrator(s) to manage and distribute the deceased’s assets. In many cases organisations will not release or transfer the assets of the estate unless Letters of Administration have been obtained.

If the Administrator does not obtain Letters of Administration they do not have the legal authority to deal with assets of the estate and could be held personally liable for intermeddling with the estate assets if a Will is found later, even if the Administrator acted honestly.

Vanessa’s solicitor Jemal Zagami was been granted letters of administration of Jean’s intestate estate.

In June 2012, Vanessa instructed a solicitor, to apply for a grant of letters of administration. The Solicitor wrote to Adrian asking if he would consent to being made in favour of Vanessa, or if Adrian wished to be appointed as co-administrator. It was the first of a series of letters, to none of which Adrian replied.

On 17 January 2014, Vanessa’s solicitors wrote advising Adrian that he was one of the nominated beneficiaries of an investment account and asked him to contact them ‘ to enable the claims administrator to pay out the benefit’.

On 17 March, the solicitors sent a letter by registered mail, advising Adrian of his status under intestacy and the usual occurrence that where only one of the beneficiaries is making an application for letters of administration it is common for the remaining beneficiary or beneficiaries to give their consent to that application.

On 15 January 2015, the solicitors wrote to Adrian advising him that the grant of letters of administration had been made and that the estate held $175,326.90. He was advised that he was one of two people entitled to share in the distribution of the estate and that the administrator had approved an interim distribution of $75,000 to each. He was asked to contact the solicitors ‘so that we can confirm payment to you of your share of the interim distribution’.

On 25 January 2015, the solicitors advised Adrian that they were holding the interim distribution in the trust account pending contact from him to claim the funds.

On 15 June 2016, the solicitors again contacted the Adrian advising him that, ‘if you do not wish to claim the funds you may authorise us to, as an alternative, pay the funds to your sister [Vanessa]’.

On 24 August 2016, the solicitors sent a further letter advising that in due course the funds could be lodged as unclaimed money with the Department of Treasury.

On 16 November 2016 the solicitors telephoned Adrian, who said after the situation was explained to him ‘I do not want anything to do with the legals in Perth’.

The Solicitor explained that $90,000 from his mothers estate was being held on his behalf. Adrian replied ‘I don’t want anything to do with it’ and ‘you can hold me to that’.

On 1 May 2017 the solicitors again wrote to Adrian confirming that that he did not wish to claim his share of his mother’s intestate estate. However as he had not signed the authority to authorise payment of your share of the estate to your sister we are seeking further directions from the Supreme Court

  • that you have disclaimed your interest in your mother’s estate,
  • and for a direction that, in the circumstances, the administrator is justified in paying your share of your mother’s estate to your sister

The Court found that an effective disclaimer must constitute an absolute rejection of the gift. It must evince a final and non-negotiable refusal to accept the property, which the donor proffers. It must be ‘simple’: it must not purport to do anything other than disclaim … A disclaimer is effective in and of itself. Oral communication of a disclaimer is sufficient:

  • The oral disclaimer by Adrian is effective.
  • He had been repeatedly advised by letter about what was happening with his mother’s estate.
  • was told the nature of the gift.
  • His rejection was expressed to be absolute, effective immediately, and unconditional. He said that he wanted nothing to do with it.

 

 

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s