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Trusts & Estates Law/Testamentary Trustee Misusing Funds


Several monthís prior to fatherís death, he was transported from our home, to a convalescent care facility, unable to walk or care for himself mentally or physically. He had to be transported daily for chemotherapy, trustee and fatherís employee took father from chemotherapy center, bypassing transport driver and took to lawyer, changing will from spouse and kids to a testamentary trust with himself as guardian. Convalescent center called mother advising male missing, which is why we were aware of this occurring. Father had not as yet successfully passed a competence exam. Neighbor stated later father was found wandering, just wanting freedom for a while. Found out about new will after father rushed to hospital with lung and cardiac failure on life support, when hospital asked for wife (mother)as medical power of attorney. Both the neighbor and employee then showed mother new will, excluding her as divorced wife/common law wife, and excluding 5 year older sibling completely. Father died the following day, without waking. Noted estate to be placed in testamentary trust until self and younger sibling turned 25.

We saw evidence within one week trustee using decedentís personal property  - computers and digital equipment -  for personal use, and were able to demand their return. Trustee then attempted to gain control of Fatherís life insurance proceeds by claiming mother was not to be found, and neighbor was Trustee.  This was blocked by mother, proving she was in the home with children and father for the 6 months preceding his death, working full time and supporting the household (at fatherís request.)  

Family relocated the following year to another state after actions and statements showed eavesdropping on family property and refusing to make needed house repairs to family home, citing trusteeís home needed it more.

We are here 13 years later; for most of those years trustee has neglected to send k partnership statements until after tax filing date Ė the last two years having sent nothing - and has allowed family home to fall into disrepair having allowed his outlying family to live there, and destroying outbuilding previously used by father for his car and bike collection.

We are in contact with Trustees children, who have advised of remodels to their own home in the ongoing years, yet not family home.  Trustee apparently closed Fathers business and sold the assets for pennies on the dollar to the selfsame employee that snuck father out of chemotherapy center while driver waiting to return him to convalesce center.

Should we attempt to break the will now that we all three children are of legal age 18 and over,  or just demand an accounting and spend money on legal fees trying to get all the assets accounted for from another state?? We are less than two years form my 25th birthday. Note our house was paid for, there was an extra savings account with over 20k slated for property taxes for the next decade, we had a ľ million dollar mortgage on my fatherís last business, all his business assets (closed two businesses due to his decline and had assets at last business), 3 antique cars, 3 newer vehicles, one antique motorcycle, and our father has a fortune in stones on his hands when he entered the hospital, which the trustee removed prior to his death. My mother has several discs of the last backup of fathers business and personal bank accounts several days before his death, showing inventory and assets.

Dear Blane

I feel sad to hear this. For temporary materialistic gain, people go to any extreme. Any way. This is human life and living.

Coming back to your situation, you have both the options in front of you. Both have merits and demerits. Either, you may fight for recovery of all assets/claims of yours OR settle down with whatever is available right now.  The recovery of all assets will be a long drawn process and uncertainty of success remains.

Whatever path you choose, I suggest that you consult and engage an honest (?) lawyer so as to build your case to have better success.

Best of luck

Prof Garain  

Trusts & Estates Law

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Swapan Garain


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