VIC Separation years ago but not settled. House in joint names.

[Destiny]

Hi My parents separated 4 years ago. They had not divorced or completed any orders to settle, even though mother was commencing to force sale.Now she found out he is dying, she stopped settling knowing she will get the whole home. The home is joint owners so understand that she takes over home if father dies, as he now has terminal short term illness. He stated she can have home when he dies and is now in nursing home. I was given enduring power of attorney, but in bad situation as to what can do at property.
Can she just move back in prior, without some form of consent as to occupancy ?
Do I have right to tell her to stay away from house and go see solicitor?
There is all his belongings still in home, if she can legally move back prior to his death, does the furniture become hers and nothing I can do to get out?
Would she have to wait until date of death or minimum 6mths from probate to claim home?
Can she stop me from going there to protect his home/belongs and do I have right to remove furnishing/goods without consequences.
So confused and don't want to be in trouble under the powers of attorney for doing wrong thing, thanks

 

[Atticus]

If your father still has legal capacity (of sound mind) I would be suggesting he make a will so that he can distribute his assets according to his wishes.... If he dies without one (intestate) the whole estate will pass to the wife if it is a joint tenancy..

As they are separated, while he is still alive, even though she has a financial (equitable) interest in the place under family law, she can not leaglly move into or even enter the property without his consent..

 

[rjm]

Atticus would it be a good idea for the Dad to gift Deidre the things that she wants now? Maybe still get it in writing & also put it in the will, just in case Mum gets to it before Deidre gets it out of the house. Saves having to battle to get anything back.

 

[Destiny]

Atticus would it be a good idea for the Dad to gift Deidre the things that she wants now? Maybe still get it in writing & also put it in the will, just in case Mum gets to it before Deidre gets it out of the house. Saves having to battle to get anything back.

Hi Dad had changed his Will recently 2 times due to mess with another family member. I don't think he wants to change again as is over it all. His estate is to be split between two of us, but doesn't mention the furniture specifically, but mother not mentioned on it now. RJM he has a car, that I got in writing and signed, that he gives permission for me to sell since he cant drive now and is sound of mind still. But again, don't think will change Will again to state that. I suppose only option is to do the same stating furniture and remove asap.
Leaves question still as to does she have to wait the 6 mths minimum after probate or on date of death ? Thanks so much all.

 

[Destiny]

Hi My parents separated 4 years ago. They had not divorced or completed any orders to settle, even though mother was commencing to force sale.Now she found out he is dying, she stopped settling knowing she will get the whole home. The home is joint owners so understand that she takes over home if father dies, as he now has terminal short term illness. He stated she can have home when he dies and is now in nursing home. I was given enduring power of attorney, but in bad situation as to what can do at property.
Can she just move back in prior, without some form of consent as to occupancy ?
Do I have right to tell her to stay away from house and go see solicitor?
There is all his belongings still in home, if she can legally move back prior to his death, does the furniture become hers and nothing I can do to get out?
Would she have to wait until date of death or minimum 6mths from probate to claim home?
Can she stop me from going there to protect his home/belongs and do I have right to remove furnishing/goods without consequences.
So confused and don't want to be in trouble under the powers of attorney for doing wrong thing, thanks

If your father still has legal capacity (of sound mind) I would be suggesting he make a will so that he can distribute his assets according to his wishes.... If he dies without one (intestate) the whole estate will pass to the wife if it is a joint tenancy..

As they are separated, while he is still alive, even though she has a financial (equitable) interest in the place under family law, she can not leaglly move into or even enter the property without his consent..

Sorry may have replied separately below

 

[rjm]

Hopefully one of our qualified legal eagle's will correct me if I'm wrong.
I'm thinking your problem may be that there was no formal separation. Your Mum could argue that they were simply living separately. I'm guessing that you want your Dad to deal with as little as possible considering the circumstances. You don't want the poor bloke watching his loved ones battle over his stuff in his final months. Because of the joint tenant thing & no formal separation she can probably enter the house whenever she wants. I'd ask your Dad to gift you the things that you want. Just a simple note to say that he gifts you the items should be OK. I'd probably just ask for things of sentimental value if you don't want him to think it's all about the cash.

 

[Atticus]

I was given enduring power of attorney

So do you have that now or only if/when he loses legal capacity?.... If you have it now, you can act on his behalf (in his best interests), meaning you have authority to stop anybody else from dealing with his assets... after death, his will sets out what is to happen to his assets & the executor of the will has authority over assets pending the granting of probate & then distributes according to the will... Until that time, the home & assets should be locked up.

If the will is silent about what is to happen to Chattels, the norm is to offer it to family members & anything that is not taken is given away or sold... Any proceeds of sales must be kept by the executor as it forms part of the estate for distribution among the beneficiaries..

but mother not mentioned on it now

So are you saying the mother is not named as a beneficiary in the will at all?... If not then how is it your father told her she can have the house?... Very confusing

 

[Destiny]

Hopefully one of our qualified legal eagle's will correct me if I'm wrong.
I'm thinking your problem may be that there was no formal separation. Your Mum could argue that they were simply living separately. I'm guessing that you want your Dad to deal with as little as possible considering the circumstances. You don't want the poor bloke watching his loved ones battle over his stuff in his final months. Because of the joint tenant thing & no formal separation she can probably enter the house whenever she wants. I'd ask your Dad to gift you the things that you want. Just a simple note to say that he gifts you the items should be OK. I'd probably just ask for things of sentimental value if you don't want him to think it's all about the cash.

Hi RJM Yes Dad doesnt need the arguements caused now. Have so far got written permission when handling main items as he had always truted me to do the right thing ,opposed to the others. Now confused if she can enter from anytime now or after death.

 

[Destiny]

So do you have that now or only if/when he loses legal capacity?.... If you have it now, you can act on his behalf (in his best interests), meaning you have authority to stop anybody else from dealing with his assets... after death, his will sets out what is to happen to his assets & the executor of the will has authority over assets pending the granting of probate & then distributes according to the will... Until that time, the home & assets should be locked up.

If the will is silent about what is to happen to Chattels, the norm is to offer it to family members & anything that is not taken is given away or sold... Any proceeds of sales must be kept by the executor as it forms part of the estate for distribution among the beneficiaries..


So are you saying the mother is not named as a beneficiary in the will at all?... If not then how is it your father told her she can have the house?... Very confusing

Hi Atticus I have enduring power now and also executor to Will. So can't remove assets now eg furniture as a sister had broken in and we were told by police to remove car? So would the same apply for the furniture should be removed? Have offered family members small items not of much value.
Mother was taken off Will, but told it automatically will go to her if no court orders/settlement done. Therefore father given up in his health situation to fight settlement so she gets home/land if he doesn't.

 

[Atticus]

Mother was taken off Will, but told it automatically will go to her if no court orders/settlement done. Therefore father given up in his health situation to fight settlement so she gets home/land if he doesn't.

Is the house specifically mentioned in the will as to what should happen to it on his death? ... Is it of significant value after all encumbrances paid out ?