Rest in Peace , livre ebook

First published in 2018 by Grammar Factory
© Zinta Harris 2018
The moral rights of the author have been asserted
All rights reserved. Except as permitted under the Australian Copyright Act 1968 (for example, a fair dealing for the purposes of study, research, criticism or review), no part of this book may be reproduced, stored in a retrieval system, communicated or transmitted in any form or by any means without prior written permission.
All enquiries should be made to the author.
Printed in Australia by Paradigm Print Media
Cover design by Soul Stirring Branding
Internal design by Charlotte Gelin Design
Editorial and book production services by Grammar Factory
ISBN: 978-0-6484242-0-8
ISBN: 978-0-6484242-1-5 (e-book)

Disclaimer
The material in this publication is of the nature of general comment only and does not represent professional advice. It is not intend to provide specific guidance for particular circumstances and it should not be relied on as the basis for any decision to take action or not take action on any matter which it covers. Readers should obtain professional advice where appropriate, before making any such decision. To the maximum extent permitted by law, the author and publisher disclaim all responsibility and liability to any person, arising directly or indirectly from any person taking or not taking action based on the information in this publication.
While the case studies in this book are based on real case scenarios, individual names and facts have been changed and blended so that the case scenarios do not resemble an actual case, in order to protect privacy. Any resemblance to actual persons, living or dead, or actual events is purely coincidental.
To my family,
Craig, Teja and Zigi,
you inspire me every day to make the world I live in a better place.
contents
INTRODUCTION
An all too common tale
It’s time for a paradigm shift
Why I care
PART ONE: THE EMOTIONAL LANDSCAPE
CHAPTER ONE: NAVIGATING YOUR GRIEF
Denial
Anger
Bargaining
Depression
Acceptance
CHAPTER TWO: LOOKING TO THE HORIZON
Visioning your ‘new normal’
Identifying your values
Making values-based decisions
PART TWO: THE LEGAL LANDSCAPE
CHAPTER THREE: ADMINISTERING THE ESTATE
Finding the will
Who takes on the administration?
Applying for a Grant of Representation
Ongoing complexities for personal representatives
CHAPTER FOUR: DEFINING THE ESTATE
Determining what’s in the estate and what isn’t
Claims relating to defining the estate
CHAPTER FIVE: CHALLENGING THE ESTATE
Making a claim for further provision
Contesting superannuation
PART THREE: THE WAY FORWARD
CHAPTER SIX: THE LEGAL PATHWAYS
Kitchen table negotiation
Solicitor-guided negotiation
Mediation
A collaborative approach
The court process
CHAPTER SEVEN: YOUR TEAM OF SHERPAS
Your legal Sherpa
Your supporting Sherpas
CHAPTER EIGHT: THE ART OF NEGOTIATION
Negotiation styles
Tips for how to like a pro
You have reached agreement – now what?
CONCLUSION
A good news story
Prevention is better than cure
Putting your life back together
APPENDIX A: SAMPLE LIST OF VALUES
APPENDIX B: CHECKLIST FOR THE EXECUTOR UNDER A WILL
APPENDIX C: LIST OF ESTATE ASSETS AND LIABILITIES
USEFUL RESOURCES
Counselling and Grief Support
Law Societies in Australia
Collaborative Law
Mediation
Courts – Probate Registries
Superannuation Complaints Tribunal
GLOSSARY
ACKNOWLEDGEMENTS
ABOUT ZINTA
there’s a way to do it better - find it.
THOMAS A EDDISON

INTRODUCTION
introduction
A N ALL TOO COMMON TALE
I t was a Friday afternoon when Barbara called in to my office. She was at the end of her tether and looking for legal help. She was an executor of an estate, and she had just been served with court proceedings which, among other things, sought costs orders against her personally.
Barbara was a retired doctor and had agreed to act as a co-executor for Tom and Mary when they were her patients years ago. They knew then that there might be trouble – but no-one could have predicted just how much trouble was coming their way.
Barbara proceeded to tell me the story.
Tom and Mary had been married for over thirty years, but it was their second marriage and their family made the Brady Bunch look small – Tom had seven adult children and Mary had five. Sensibly, they had decided not to expand the family by having children of their own.
Unlike the Brady Bunch, theirs was no happy family. Tom, had difficult relationships with every one of his children apart from his youngest daughter. The others had never forgiven him for their own upbringing, and they never understood why he walked out on their family. They didn’t want anything to do with their father, even after he reached out to them.
Tom had met Mary at the local church. Mary was the one who got Tom to stop focusing on the mistakes he had made in his past and to start focusing on what he was going to do about his future. Soon their friendship blossomed into more, and they made plans to marry.
Tom had walked out on everything and agreed that his first wife should have their house, because she was looking after their children. So, Tom came into the relationship with nothing but the savings he had since his divorce. On the other hand, Mary had scrimped and saved with her first husband to pay off their home. When her first husband died, Mary inherited that house. Mary also had savings of her own.
Tom had been brought up on the land, so when a local cane farm came up for sale, Tom and Mary pooled their savings to buy it and Tom started working the property. As Mary’s children left home to study and work in the city, Mary and Tom decided to sell Mary’s home to renovate the worker’s cottage on the farm making it into their home.
After fifteen years of living on the farm, and after severely hurting his back one harvesting season, Tom and Mary decided to sell up and move closer to Mary’s family by the beachside to retire. They found a one bedroom unit walking distance from the beach and were thrilled to secure a buyer for their farm so that they didn’t have to move twice. The mortgage they had would be paid out, and they would have enough in surplus to help them live out their retirement modestly.
Tragically, Tom died before ever setting foot in their beachside retirement unit.
And so the dispute begins
Mary was devastated. Her children rallied around her and helped her as best they could to finish up the packing and to make arrangements for Tom’s funeral. Mary had found Tom’s will and was relieved to see Barbara named as her co-executor. She would have someone to help her.
They couldn’t believe their eyes when the first lawyer’s letter arrived in the mail soon after Tom’s death. The letter was full of demands and ‘rights reserved’ and notices given to advise that Tom’s estranged children intended to make a claim against his estate. Mary was being told to suspend contracts for both the sale of the farmhouse and the purchase of the new unit. Tom’s children wanted their share of everything – and they wanted it now.
Charming. Not even an expression of condolence had been given, not that it would have meant much in the context of the letter that followed. Tom’s children clearly weren’t grieving him – but they were hell bent on letting loose decades of pent-up anger.
As soon as she got this letter, Mary rang Barbara. Even though years had passed, she dropped everything and made the trip out for Tom’s funeral and so they could work out what to do next.
The best laid plans of mice and men
Tom and Mary had prepared their wills soon after they were married, and again once they purchased the cane farm. They bought the farm in joint names, setting it up legally so that each could give their fifty percent share to their own children. Their mirror wills gave each other the right to live in any house they owned jointly for life, so that at the least the other had a place to live peaceably until their own death. After the other died, their children would then take the estate. Tom’s children would share Tom’s half, and Mary’s children would share Mary’s half. Tom and Mary had explained all of this to their children. None of them complained about the planning being unfair at the time, although it was clear that Tom’s children didn’t care too much for their new stepmother. All in all, the planning was done as well as it could have been.
Despite the estate being very modest, Tom’s children learned quickly that there would be a surplus generated once the farm property was sold and the unit was purchased. So, their solicitors issued court proceedings claiming further provision from their father’s estate, even though they knew they would get one hundred percent of that estate when Mary died.
Sadly, the proceedings were protracted and acrimonious.
All the while, Mary was not able to proceed with settlement of both property contracts due to the threat of litigation.
Given the estate’s costs were already mounting up, Mary decided, on a purely commercial basis, not to argue further and to pay Tom’s children a settlement sum. Once that sum was paid, Mary would be free to proceed with the contracts and, it was hoped, to get on with living her life.
On and on it goes
But Tom’s children did not stop there. Payment of the settlement sum only supplied them with a further fighting fund. Tom’s children then complained that the f