Family Inheritance Law
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Definition: The right of an heir to succeed to property after the death of an ancestor.
To manage this transfer of ownership from life to death we created inheritance laws so as our families would not be racked with dispute upon our deaths. Family inheritance law is one of the foundation blocks upon which human civilisation has been created. It has been formed by family in the interests of positive family development and survival.
When a lawyer from outside of the family group comes into a power conflict with the family, as is the case between my mother’s family and the members of Russell Kennedy and Ian Bult, the law must act in the interests of the family and not in the financial interest of the lawyers (Ian Bult and the members of Russell Kennedy). Inheritance distribution within a family unit after a parent has died is a process based upon trust and is the outcome of all of the events and relationships between the parent and their children throughout their lives. It is the final act of love that a parent bestows upon their children when they leave this world, knowing that they will no longer be there to help and protect them. This final act of love is bestowed to their offspring and others they loved by the deceased in the form of a legal document known as a will. A will is a legally binding contract that states the wishes of the dead in regards to how their possessions should be distributed to the living. It is a sacred document enshrined in law that has evolved over thousands of years of human development. The person writing their will assumes it is protected by law, and assumes that all persons participating in their will, shall not abuse those laws by behaving in a dishonest manner to serve their own interests. Particularly lawyers placed in a position of fiduciary trust as executors by the deceased. The deceased person believes those lawyers will tell the truth, be accommodating to the needs of their family and will not abuse their position of power, a power vested in them by the deceased in the form of trust. If these people do abuse this trust by serving their own interests they abuse the inheritance rights, the family rights and the human rights of the deceased`s family members. They also abuse a system of law that has been built on thousands of years of wisdom that has evolved with human civilisation, and the realisation that families are the fundamental group unit of society and are entitled to be protected by society and the State.
A Will (Wills)
A will is a contract between the living and the dead. It is the bridge between life and death. A will describes in law who will inherit their possessions after their death. It is a reflection upon how the deceased person felt towards the beneficiaries of their estate, particularly their own children. A will, will have a lasting benefit upon the people who inherit and their families. A will, will nominate an executor or executors who are in an absolute position of trust so as their wishes regarding their estate may be carried out after they have died.
Quite frequently people nominate their lawyer as the executor to their estate in their will, after all they go to a lawyer to get their will written and in the process they make the lawyer the executor. Our multicultural, society and the large influx of migrants to Australia after World War 11 who have few extended family networks has led to a greater dependency by our population on lawyers becoming executors.
When people nominate a lawyer as the executor they are not aware that:
A lawyer who is an executor can make a decision based on information he or she has that can be claimed to be privileged. This means that this information can be withheld from family members, even a family member who has been nominated by the deceased as an executor, even when the family member and the lawyer executor disagree upon the wishes of the deceased.
The lawyer executor is not accountable for the decisions he or she makes under the Victorian Legal Professional Act 2004 because they are acting as an executor and not a lawyer. They can claim that the information they hold that allows them to hold their view of the deceased wishes is privileged, and should not be available to the family member executor.
This situation puts the lawyer executor in a more powerful position than the family member executor when determining the wishes of the deceased.
If we concur that the family unit is the foundation block of the formation of our civilised society, thus the point from which our laws emanate then why is it that the legal professional who is acting as an executor of a deceased estate can be allowed to hold vital information from the family member executor which can assist in determining the wishes of the deceased?
In attempting to make a decision of the wishes of a person who is no longer alive one would have thought that the interpretation of any information disclosed to any party including a lawyer should be available to the family representative in order that the family representative may also have an interpretation of that information. Particularly when one considers that the family representative would in most instances have been in contact on regular occasions with the deceased before they died and would be familiar with their wishes.
The law even allows the lawyer executor to engage in acts of, breach of duty, deceit, misrepresentation, and false and misleading conduct. In other words lie about or misconstrue the contents of this so called privileged information to the children of the deceased and when our legal services commissioner is provided with the evidence of the lie he states: Ref pg 29 Letter written by Victorian Legal Services Commissioner 20 02 2012
“In this case, I note that you have provided me with a copy of your late mother’s letter to Mr Bult dated 30 October 1998. Whilst the letter itself is a document that I have not previously had an opportunity to consider, the contents of same do not provide me with any new information which would allow me to re-open the complaint.”
Appointing an executor to your estate will be the greatest acts of trust you will ever commit to because when you’re dead you have no say. The executor does.
A lawyer is appointed as an executor by the deceased as a complete act of their faith in the trustworthiness of the law and the legal profession and yet in most instances the lawyer who is appointed as executor will not tell the testator that when they act as an executor they will no longer be acting as a lawyer and will not be bound by the legal professional act and will not be accountable to the Victorian Legal Services Commissioner.
This concealment by the lawyer of the true nature of the relationship the testator is entering into with the lawyer contravenes the Trade Practices Act and is an act of misleading and deceptive conduct which breaks relationship of trust between the lawyer and the testator from the outset unless of course he had the decency to inform the testator of the true state of the new relationship.
A lawyer would need as an absolute minimum (so as to not be engaging in false and misleading conduct, by misrepresenting himself and the legal profession, along with its perception of public trust to the person nominating the lawyer as an executor):
To introduce a clause within the will stating:
I the testator nominate Joe Blogs “Lawyer”, and I am fully aware that when Joe Blogs becomes my executor Joe will no longer be a lawyer and I am now hiring him as an executor and he will no longer be bound by the Legal Professional Act of 2004 and that The Legal Services Commissioner will therefore not have the power to investigate any complaints bought against him by the beneficiaries of the estate.
A far more effective solution would be for the legal professional act to bind lawyers who are acting as executors to it, by stating that even though they are executors they are deemed to be lawyers.
Australia`s conflicting and complex inheritance laws
20 thoughts on “Inheritance”
Colin on May 14, 2012 at 12:28 pm said:
Our lawyer acting as executor thinks he is acting as a lawyer, has even threatened my wife with legal action if she continues to talk to other lawyers about his misconduct and abuse. He even states that he will not charge the estate for legal work as remuneration has already been provided for in the will as he gets a percentage. So if he thinks he is acting as a lawyer, the person who made the will thought he would be acting as a lawyer, it would seem that he is in fact a lawyer and executor in this case.The only people who think he is not a lawyer are the LSC, the Ombudsman.The probate office when requested to audit letter of administration just say its not their duty, what the hell are they there for? Then when requested access to the next letter of administration which was not lodged correctly, say because of our complaint, it not available because its under investigation.. How much more oppression do our families have to endure from these judiciaries, before they just loose all respect.
