QLD Need advice regarding family home

[kristina]

Hello,

I apologise in advance for the epic story you are about to read, but I really do need some advice. I am 53 years old. Back in 1971 or so, my mother (who was in her mid 40's) went to purchase her first home. She was a single working mother, and my 2 older brothers, were 22 and 24. She went to what was SGIO (now Suncorp) to borrow the money to buy the house, but was told she needed co-borrowers as her age and single income was not acceptable, which led to my brothers be a part of the loan. My mother and both brothers were on the title deed to the house. The house was I think $14,000.

My mother paid off that house by herself, with no financial help from my brothers, she didn't want it anyway lol...strong stubborn Polish woman she was, and paid off that house in only a few years. A few years later, my oldest brother moved out of the house and got married. Other brother, has always stayed living with mum, he never married or had children. I moved away, had children of my own.

2007 Our mother had a stroke, that sent her into a coma and she passed away. She was 79, and had no will. Oldest brother was now divorced and had a 16 year old son, and not living in the home. Other brother was still living with mum, and was the one who called ambulance when she had the stroke.

Fast forward to the present. Oldest brother, Jerry will be 71 in a few days, and is in permanent aged care (where I work, actually), as he has progressive supra nuclear palsy. I am his EPOA. His son has not had anything to do with him for the last 4 years. Other brother, Ray is still living in the house, and is on aged pension. He pays for all the bills regarding the house and always has done since mum's passing.

I've spoken to one lawyer that states the house is jointly shared by both brothers, as mum didn't leave a will to include me in the share of the house. Oldest brother Jerry apparently can't sign the house over to Ray as lawyer said it's basically Jerry gifting his share of the house to Ray, which would affect both their pensions. (Neither has any superannuation by the way). Incidently, the title deed to the house still shows all 3 names as owners.

Can my oldest brother make a will considering he cannot verbalise too well, nor write due to his condition? Brother Ray wishes to leave the house to me but currently does not have a will. Considering Jerry is part owner, if he were to pass away first, his share in the house would legally go to his son, correct? (Ray does not wish to see Jerry's son have anything to do with ownership of the house. (Ray is in decent health, he is 68). I was thinking of contacting Centrelink to see how much their pensions would be affected. If it's not too great, is it possible to just remove Jerry (and our mother) from the title deed? The house is in very bad condition, as it's got extensive white ant damage, leaks rain in heavy storms and would be regarded as not repairable. Council rates value the property at approximately $340,000.

Any advice you can offer would be greatly appreciated.

Thanking you in advance,

Kristina

 

[Rob Legat - SBPL]

There are a few issues here:

1. Deceased persons cannot own property, so it needs to be transferred out of your late mother's name. How this can be done is dependent on the way the property is currently held (see 2).

2. The tenancy in which the property was held is relevant. If your mother held her 'share' as a joint tenant, then it automatically goes to the other joint tenants (e.g. your brothers). If she held it as a tenant in common, then it forms part of her estate. Obtaining a title search will reveal what the tenancy is. This should be the first step.

3. If your mother held the property as a tenant in common, then the intestacy rules will apply as she had no will. Without knowing anything else about your family tree, this should between yourself and your brothers in equal shares. Following this through, if your brother and mother each had a 1/3 share in the property this could end up as each brother having 4/9 share and you have 1/9 share.

4. Given the manner in which your brothers came to hold a share in the property, and the family dynamics, there may be grounds for a family maintenance application from one or more of you. That could get complicated.

5. If your brother retains sufficient legal competency to make a will, he can. Determining capacity and the will making process is likely to be complicated given his condition but it is definitely possible. If he were to pass away intestate, his share may indeed go to his son (depending on the statutory formula).

6. You can transfer the property, providing a few things:
(a) If your brother no longer has capacity, you could do so on his behalf providing you register your EPOA. However, you will not be able to transfer the property to yourself as this would be a conflict (at least not without a court order allowing it).
(b) Transfer duty will be payable on the house at value (and a valuation/appraisal will be needed if transferring to related parties) x the share actually transferred. That can be expensive. Bear in mind Council rates are generally the unimproved capital value (i.e. 'bare land') - not actual value.

 

[kristina]

Thank you for your reply.

I have a title deed from a year ago. It shows ‘joint tenant’.
Oldest brother is cognitive, so how do I organise him to make a will? Can I use a will kit, or should I take him to a lawyer? (No other assets nor finances included, just the house).
Could you please explain what a family maintenance is? I’m not aware of this term, sorry.

In regard to brother Ray who lives in the house, can he use a will kit or again, lawyer? It’s basically all about the house, (he has no other assets or finances to leave either), so a simple will.

 

[Rob Legat - SBPL]

Okay:

- Joint tenants means the property goes directly to your brothers. A form called a 'Record of Death' needs to be lodged with the Titles Office together with a death certificate. This will then take your mother off the title.

- I never recommend will kits to anyone. I understand that's somewhat self-serving, but I have seen a number of clients who have come in with them and they have been obviously wrong, or poorly worded and uncertain. I doubly do not recommend a will kit in the case of your elder brother as you're going to want the actions of an independent, legally qualified person who will be able to give evidence as to the capacity of your brother in making the will and that there was no undue influence given.

- A family maintenance claim is basically a claim from anyone who might be entitled to part of someone's estate (usually immediate family), who feels that they did not receive an adequate share of the estate. For instance: If the house is the bulk of your brother's estate and he leaves the house to you and your brother then his son may feel that he's been 'robbed' of his inheritance. He may decide to contest the will in the Supreme Court by claiming, for example, that his father didn't have sufficient capacity to make the will. This ties up the estate in the Court for a period of time, and costs the estate money to defend. While not certain, a way to dissuade this type of action is a carefully worded explanation in the will as to why the house is being dealt with the way it is - something that the Court can read and aid in interpreting your brother's wishes, and also helpful in establishing that he was of sufficiently sound mind to make the will in the first place.