I am an ex wife with two minor children and one 18 year old. Their father died 4 weeks ago we had divorced 14 months ago

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Customer: I am an ex wife with two minor children and one 18 year old. Their father died 4 weeks ago we had divorced 14 months ago but we had not Financially settled. There is a will (2018) held at his lawyers office (also his executor) that leaves my out three children and a child of his from a previous Marriage 25% each. Allegedly there was a will drawn up 8 weeks ago leaving our 3 children 5% and the other daughter 85%. But was never signed. My 18 year old has requested the will three times now from Caldicott, she then got a lawyer 2 weeks ago who Also requested the will. We are still to hear anything. Caldicot (lawyer/Executor) is seeking guidance from the Supreme Court to see which will is more valid.
JA: What are the assets involved here? Are there any minor children?
Customer: I’m wondering what is really going on here
JA: The Family Lawyer will be able to walk you through that. Where are you located? Divorce laws vary by state.
Customer: we in Adelaide
JA: Anything else you want the Lawyer to know before I connect you?
Customer: We have. A house in my name but guaretreew 1 million dollars of his business loans and bank says I have to pay Customer: Chat is completed
Answered by John Melis in 59 mins 1 year ago
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John Melis
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John Melis, Expert

Hi, I am John Melis, the solicitor. I am in Australia. I want to thank you for taking the time to speak with me today.

Hopefully, together we can find the right path for you. May I suggest the following for your consideration?

I am sorry for the loss of your late partner and the father of your children.

The laws of intestacy will apply subject to any last will and Testament that your former partner had.

You will be able to make a family provision claim for the support of yourself and the children.

May I suggest that you engage a lawyer as soon as possible to help you with this process, irrespective of the separation and financial aspect between the parties.

​You’re handling this matter very well.

If there is anything else, big or small, that I can help you with today, please let me know?

Customer
Ok I have a question my deceased ex husband is/director of a company since 2017, previously to that I was the director of that company for 10 years.6 years ago the company took out a 1ml loan to buy a property. The loan was guaranteed by the family home which is only in my name where my self and the three children live.
The loans is in the company name.
It’s a crash repair shop. With my ex husband no longer around the business could go into liquidation very soon as he ran up a lot of other debt before he died. He does have a life insurance policy that will be paid into his estate. I am not sure of the value of the policy.If the bank want to recall in their money will they come straight to me or will they seek funds From the insurance policy.My ex’s lawyer said the bank will come straight to me and advises me to sell the house.What is your advise. ?The business rents a large commercial property which is owned by a SMSF, that I am a director of.I was my late Husbands main beneficiary at 80% it was a non lapsing binding agreement. How ever we are divorced, from what I have read from the deed it seems the binding agreement is not valid
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John Melis, Expert

Thank you for the additional information. The bank will first raise a claim against the estate of the deceased, which will cover some of the insurance policy payout. Therefore, it is possible that the family home will be safe.

​You’re handling this matter very well.

If there is anything else, big or small, that I can help you with today, please let me know?

Customer
Ok so I formed a SMSF back in 2010. We made non lapsing binding agreements and nominated beneficiaries. Mine to him85% (harry) and left 5% each to the 3 children from our marriage. Harry 80% to me 5% to each of his children and 5% to his grandchild Alexis. He didn’t want to leave portion to his daughter Anne-Marie (as they weren’t close).
Customer
I
Customer
Non lapsing binding death benefit nomination
Customer
Harry’s agreement
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John Melis, Expert

The self-managed super fund will have a deed.The deed will determine how the operation and structure of that deed runs.If the deed is drafted correctly, there will be no issues concerning your criteria.You’re handling this matter very well.If there is anything else, big or small, that I can help you with today, please let me know?
Customer
In August 2012 the fund purchased property and we signed a deed of removal and appointment of trustee . The new trustee is nineteen twelve PTY LTD a company we has to set up to get a loan to purchase property in the super fund
Customer
We are both directors of that company
Customer
It’s says I am not a beneficiary any more because we divorced
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John Melis, Expert

How about we talk on the telephone? It'll be easier to discuss your matter.I thank you for raising your question on Just Answer.If there is anything else, big or small, that I can help you with today, please let me know.
Customer
Yeh sure just trying to send you the paper work to help understand thank you
Customer
Shall I call you in half hour or now or tomorrow
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John Melis, Expert

Thank you for uploading those documents.I look forward to talking with you on the phone.
Customer
Also I have not told you about the other Will that was drafted up a week before my ex husband died
AnneMarie 85%
My three children 5% each
It was ready to be signed but he didn’t get around to it.
His lawyer/executer took it straight to the Supreme Court or aQC FOR advice. We haven’t heard anything in 4 weeks
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John Melis, Expert

Sometimes the court process can take an extended period due to the backlog in the court's files.I hope I’ve provided the information you were seeking. If you need more help, please let me know so l can continue to assist you.
Customer
Forwarded message ---------
From: Craig Caldicott <*****@******.***>
Date: Wed, 13 Jan 2021 at 4:48 pm
Subject: RE: My fathers will
To: ***** ***** <*****@******.***>
Cc: Taylor Falting <*****@******.***>, Jacqui McDonnell <*****@******.***>Dear Soraya ,We have a signed original will at our office. We also have instructions from your father to alter that will . That would alter who is to receive what .I have been trying to speak to a Mr Stephen Ower QC as to the status of the estate .He is an expert in the area. We may have to seek guidance from the Supreme Court . It is further complicated because the property at Richmond road is held by the super fund , the business via a company of which your Fatherwas sole director and share holder .It is further complicated by the fact that he had instructed us to issue proceedings for property settlement in the Family court .Once I have an opinion as to what steps I am to take as executor I will inform the beneficiaries .A further complication is the suggestion your Father made a new will last week with you as executor.He certainly didn’t do it with me. I haven’t seen any such will.RegardsCraig Caldicot
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John Melis, Expert

Thank you for that additional information.
Customer
This is from Harry’s lawyer/Executer
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John Melis, Expert

I appreciate your clarification.
Customer
My daughter soraya spoke to him on the phone (first time) and he said to her she had suggested to him there was a third will- she had never spoken to him or met him before - it was quiet strange why he would say this
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John Melis, Expert

It would help if you asked your daughter to write down all the details about the discussion in a statutory declaration.I know you put so much time and effort into this, and if you follow the steps as suggested above, it will give you a direction to go.If there is anything else, please let me know.
Customer
Done !
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John Melis, Expert

Thank you for taking the time for doing that. I'll just wait for the system to let me know the call system is ready?

Customer
When should I chat to you on the phone. There are other issues it’s just so complicated. My 3 children all have representation but I’m just waiting to see what I need to dot
Customer
It says I have 2 free calls
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John Melis, Expert

Once you have selected the telephone service option, my number will display for you, and you can call it straight away.I thank you for raising your question on Just Answer.If there is anything else, big or small, that I can help you with today, please let me know.
Customer
You just sent me a message thanks
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John Melis, Expert

It was my pleasure to help you today, and I thank you for chatting with me. Let me know if you have any other questions.

Customer
I replied not sure if you got it. It was about the business behind in rent and the super fund
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John Melis, Expert

Where the business is behind in the rent, as I respectfully ***** ***** my first post at the top, you need to commence proceedings immediately in the magistrates Court for that size of money. That is the only way you going to be able to get those payments from the tenant.You’re handling this matter very well.If there is anything else, big or small, that I can help you with today, please let me know?
Customer
What I want to know is if I can evict the business - my lease says I can.The issue might be that harry is a director of the SMSF anD the director of the business
Customer
The deed doesn’t cover this type ofcircumstance
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John Melis, Expert

The self manage super fund has a corporate trustee based on what you are saying in your information, therefore, the director of the trustee, can issue an eviction notice immediately to the tenant. If you are a director of the trustee with your husband, you'll need to come to a mutual agreement as a board meeting, resolution, to evict tenant.This type of situation can be very complex as a result of separation between husband and wife and the structure of the trustee. It might be easier to talk about this on the telephone if you prefer.
Customer
My ex husband passed away in January
Customer
I am the only director now of the SMSF
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John Melis, Expert

I'm sorry for the loss of your husband. As you are now the only director of the self managed super fund, you can without issue, serve an eviction notice on the tenant and still super compensation in the court.You may lodge a claim in court.The court’s website has a forms section to download the documents to commence the claim against that other party.There are practice notes on the court’s website. There are various resources also, which you could utilise to aid you in completing the claim form.Once you have submitted the claim form to the court, you must serve the other party with the documents.You will receive email communications from the court, and you need to review these communications carefully, as they give you instructions on what to do next.You’re handling this matter very well.If there is anything else, big or small, that I can help you with today, please let me know?
Customer
Do I need a lawyer to lodge these forms in the court
Customer
Happy to talk ove the phone tonight
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John Melis, Expert

You can run the case and the you save the legal fee.I know you put so much time and effort into this, and if you follow the steps as suggested above, it will give you a direction to go.If there is anything else, please let me know.
Customer
I have already severed them a breach notice several times. They don’t respond
Customer
Ok I will get straight onto this tonight
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John Melis, Expert

Then it is time to start court proceedings.I thank you for reaching out today.If there is anything else that I can help you with today, please let me know.
Customer
I have several other issues with some complexity however I will start to get on top of this one first
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John Melis, Expert

I totally understand how you feel.It was my pleasure to help you today, and I thank you for chatting with me. Let me know if you have any other questions.
Customer
In my lease it says I can change the locks and seize the property of the business. I will run into problems if o do this as there will be customers cars in the yard. Not sure if those customer will be able to take legal action against me
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John Melis, Expert

Before you take the property, you need to comply with the proceeds of crime is of contract and issue a court notice to the tenant. That will avoid a counter claim being raised against you by the tenant in respect to disputing the lockdown.Have I answered your question? If any part of my response is unclear, please let me know. It’s my goal to deliver excellent service, so please let me know if there is anything more I can do. Thank you for using our site.
Customer
I never ended I’ll chatting to you on the phone last time one of the questioned I have Surrounds the super fund again we made
• a non lapsing binding death benefit nomination agreement.
•the deed says one of the criteria for breaking this agreement would be if we divorced....We divorced but neither of us done another death nominationAt least I am not aware of Harry did another one but the deed says a director can k only change his non lapsing binding death Benefit of the other director agreesWhat’s your advice will I still be the. Beneficiary of his super nomination
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