Jump to content

Any Lawyers out there... I need help with something ASAP!
Please only answer if your a Lawyer.


  • Please log in to reply
16 replies to this topic

#1 sophie222

Posted 10 November 2012 - 08:32 AM

Hi,
    I am really hoping a lawyer may be able to give me some advice. In a nut shell-
My mum passed away 2 years ago. Im not sure what happened to her will, it was on her lap top.
My dad ended up being a complete ass selling all her stuff that us kids should have been given ect ect.

Anyway he didnt pay the morgage to their house was taken by the bank.
The house is about to go for Auction in a week from today.

I have only just been able to get a copy of her will (from her lap top) As he tried to do everything he could to stop us kids from seeing her will.
In it, it says something along the lines of "if the house sells my half is to go to my children"

So my question is this- Can we do anything now to stop Auction or get anything from it, now that the bank has taken the house ect....

Pls feel free to inbox me. Im in QLD.

Thank you in advance!!

#2 **Renz**

Posted 10 November 2012 - 08:38 AM

Unless its singed by a lawyer Im pretty sure its non void

#3 FomoJnr

Posted 10 November 2012 - 08:44 AM

Needs to have been signed by her, and done so in the presence of two witnesses.
There is no way to prove that document was created by your mother.

(Forgive me, I'm no lawyer, but my mum works for one and just had me do my own will)

#4 JRA

Posted 10 November 2012 - 08:45 AM

lilmummaszoo:  A will does not need to be signed by a lawyer, but it does need to be appropriately witnessed. I am not a lawyer therefore not answering your question OP, just correcting lilmummaszoo

#5 seashells

Posted 10 November 2012 - 08:58 AM

I am a lawyer but I am in Victoria and wills / estates / property is not my area of specialty, so I am not going to give you any advice other than to speak to a lawyer in your state who is qualified to answer your questions - I would start by calling Queensland Legal Aid on 1300 65 11 88 for some general advice and referrals, or visit the Queensland Law Society page for a referral to a lawyer in your area - they have an online referral system so you can at least take some steps to find someone before the weekend ends & call them first thing Monday morning.
All the best OP.

#6 Sassy Dingo

Posted 10 November 2012 - 11:03 AM

Wills and probate is a specialist area and I have never dealt with it. However, the relevant legislation is the Succession Act 1981 which states the requirements of a will:

Succession Act 1981

10 How a will must be executed
(1) This section sets out the way a will must be executed.
(2) A will must be—
(a) in writing; and
(b) signed by—
(i) the testator; or
(ii) someone else, in the  presence of and at the
direction of the testator.
(3) The signature must be made or acknowledged by the testator
in the presence of 2 or more witnesses present at the same
time.
(4) At least 2 of the witnesses must attest and sign the will in the
presence of the testator, but not necessarily in the presence of
each other.
(5) However, none of the witnesses need to know that the
document attested and signed is a will.
(6) The signatures need not be at the foot of the will.
(7) The signature of the testator must be made with the intention
of executing the will.
(8) The signature of a person, other than the testator, made in the
presence of and at the direction of the testator must be made
with the intention of executing the will.
(9) A will need not have an attestation clause.
10) A person who can not see and attest that a testator has signed a
document may not act as a witness to a will.
11) If a testator purports to make an appointment by will in the
exercise of a power of appointment by will, the appointment is
not valid unless the will is executed under this section.
(12) If a power is conferred on a person to make an appointment by
will and the appointment must be executed in a particular way
or with a particular solemnity, the person may make the
appointment by a will that is executed under this section but is
not executed in the particular way or with the particular
solemnity.
(13) This section does  not apply to a will made under an order
under section 21.




#7 JingleBlitzenBells

Posted 10 November 2012 - 11:06 AM

You need a lawyer OP.

If you are going to challenge her will etc then you need a lawyer that specialises in wills / estates.

#8 Mrs Dinosaurus

Posted 10 November 2012 - 11:11 AM

Agree - you need a lawyer. You have a week before the auction so you have time to see a lawyer and discuss your options. This is what need to do. Monday at the latest.

#9 Nobodyelse

Posted 10 November 2012 - 11:17 AM

Correct me if I'm wrong, but if the bank has taken the house, chances are your late mum won't have a half to bequeath anymore.

#10 mommyoffour

Posted 10 November 2012 - 11:21 AM

In vic, if the house was a joint tenancy ownership reverts to the survivor. So, might not be something your mother could gift.
Also, in Vic, wills can be rectified even if not signed/witnessed. Not sure about Qld...
Get legal advice, OP.

#11 JRA

Posted 10 November 2012 - 11:24 AM

Just adding, banks repossessing houses is not that common. A mortgagees auction is not that common. As has been said get to a lawyer, presumably the bank owns the house now, not your mother or father, if it is a mortgagees auction.



#12 Feral*Spikey*

Posted 10 November 2012 - 11:28 AM

There are a couple of things that are worth asking about.

Who has the printed, signed version of her Will? Does her solicitor have that? Who was the executor of the estate - they may know where the will was kept. Also, there is (in some States) a Wills register that might be worth a look.

Second, although your mother may have 'intended' to give you a share in the property, she may not legally have been able to. If the property is in both names, and as joint-tenants, the property reverts solely to the property of the surviving tenant on the death of one of the joint-tenants. That would mean that the deceased person did not have a 'share' to give away, as the title is no longer 'theirs' because of the type of tenancy they chose. If the property was 'tenants-in-common', the estate laws would deal with how the share is passed on, as it doesn't immediately pass to the other tenant on the death of one. That being said, its very uncommon for the marital home to be anything other than a joint tenancy. If the property was in your dad's name, as used to be the case back in the dark ages (okay, 60s & 70s) when the husband usually was the 'owner' for the purposes of title deeds and mortgages, the treatment is to assume 'joint tenancy'.

The next thing you need to be aware of, is that you are NOT her next of kin for succession purposes. Her husband is. That's right, as children you are entitled to NOTHING until he dies, and then, only what you're allocated under his will, or through estate law. He is entitled to full use of all of his money, and his assets - including the house. And if that includes selling it, and spending every last dollar on himself, so be it.

I would suggest that if you really want the house, that you bid on it at auction. I rather doubt you have a claim of any kind - but you could see a lawyer who specialises in succession and estate planning to confirm this.

#13 sakura73

Posted 10 November 2012 - 12:29 PM

If the will wasn't signed then she may have been deemed to have died intestate (ie with no will) and her estate would go to her next of kin, who would be her husband, as PPs have said.

In Victoria (where I am) there can be avenues for applying to the court where there was no will or a will which did not reflect the dead person's intentions. But if the house was a joint tenancy then it will have gone to him automatically on her death.

Unless the house was 100% mortgaged there should be funds left over from the sale of the house by the bank, and those funds would be distributed in accordance with who was the owner of the house at the time of sale.

Get legal advice from an expert in wills. And soon! Good luck.

#14 Acidulous Osprey

Posted 10 November 2012 - 12:41 PM

in Qld we were told we could not leave our share of our house held as joint tenants to anyone except each other.  We were looking at doing it while trying to brainstorm the best structure for our family if I died.  Could not do it.

edited bc I used the wrong term original.gif

Edited by Balzac, 10 November 2012 - 12:58 PM.


#15 spersephone

Posted 10 November 2012 - 12:47 PM

Joint Tenants = property reverts to surviving party
Tenants in Common = each party has a share, and the share of the deceased reverts to whoever is entitled to it according to a will/estate

You need to check which it falls under, and you need to find out whether she had a will or not (officially).

It's possible the bank is exerting the right to a mortgagee auction because they're owed a substantial amount, but that doesn't mean they will receive 100% of the auction proceeds.

Good luck in finding out your rights.

#16 JRA

Posted 10 November 2012 - 01:05 PM

OP: I just had a thought, how do you know your father stopped payments. Did he tell you? or is it because it says mortgagees auction?

#17 Copacetic

Posted 10 November 2012 - 03:24 PM

OP, I have sent you a PM.




0 user(s) are reading this topic

0 members, 0 guests, 0 anonymous users

 

Meet the latest baby giving the internet hair envy

"As a bald man, I'm very proud of my 2-month-old's hair," wrote new dad Brian Gorham, 32, along with a photo he shared to reddit.

Woman hits back after shop assistant labels her engagement ring as 'pathetic'

A US woman has been applauded worldwide for sharing a photo of her modest, US$130 engagement ring after a shop assistant labelled it "pathetic".

Mila Kunis and Ashton Kutcher welcome baby boy

Mila Kunis and Ashton Kutcher welcomed their second child, USA TODAY has confirmed.

After his grandkids moved away, this grandpa came up with a beautiful way to stay in touch

Chan Jae, a 75-year-old man from Korea, missed his grandsons terribly when they moved overseas.

20 gorgeous Christmas stocking and sack options

It seems every year that Christmas-themed goodies for kids get less tacky and more stylish.

Dad's genius hack for how to go shopping with a baby

A dad has shared his genius hack for tackling Christmas shopping with toddlers.

How I gave birth far too drug-free for my own liking

I certainly wasn't shy about medication. In fact, my policy on this was, in the immortal words of Britney Spears, "Gimme gimme more".

Christmas-inspired names for your December baby

Due during the festive season, or just have a love of Christmas?

Three-year-old mistakes policeman for Santa, so naturally he goes along with it

When an adorable three-year-old spotted a white haired gentleman in a restaurant she naturally assumed he was Santa Claus.

To VBAC or not to VBAC?

"If, after careful assessment by their maternity care provider, there seems to be no reason why a woman shouldn't be offered a chance at VBAC, then the opportunity should be provided."

Baby tries broccoli for the first time, immediately regrets it

It's probably fair to say that broccoli is an acquired taste.

'I didn't think I'd have pimples as a grown-up ... then I fell pregnant'

As specialists treat more adults for acne, Lucy Sheref reveals the emotional cost of years spent struggling with the condition.

Stranger's act of kindness helps overwhelmed mum in supermarket

A random act of kindness from a stranger in the supermarket brought a mum to tears, exactly when she needed it most.

21 adorable Christmas outfits for your baby

December 25 is just around the corner, and it's the perfect opportunity to dress your bub in a sweet festive outfit.

 
Advertisement
 

Top 5 Articles

Advertisement
 
 
 

What's hot on EB

What pregnancy is really like: mums share their honest opinions

We asked real women what surprised them during their pregnancy. They've shared their experiences in the hope of preparing the rest of us better for the ride

The truth about big-headed babies

Research suggests that big headed babies become more intelligent than their smaller peers. One mum shares the positives and negatives of having a big headed baby.

How to encourage your baby's gross motor development skills

There are some everyday things that parents can do to improve gross motor skills and coordination.

'My baby's extra thumb saved her life'

A mum whose daughter was born with an extra thumb says that the extra digit saved her life.

He gave her his liver, she gave him her heart

Heather Krueger and Chris Dempsey's origin story began in a darker place than most: with stage 4 liver cancer.

Toilet training from birth? It is possible

This method, called elimination communication (EC or assisted infant toilet training), is becoming increasingly popular in the West.

Watch hilarious montage of strangest pregnancy questions on Yahoo Answers

Some of the strangest questions about pregnancy - and some of the most bizarre spelling - have made for a hilarious video.

How to reduce your chances of perineal tearing in birth

The use of heat packs, along with other aspects of clinical care, can reduce your risk of tearing in birth.

 

Baby Names

Unusual Celeb Baby Names

Click through the gallery to read the details and see some of the most memorable monikers in show biz families.

 
Advertisement
 
 
Essential Baby and Essential Kids is the place to find parenting information and parenting support relating to conception, pregnancy, birth, babies, toddlers, kids, maternity, family budgeting, family travel, nutrition and wellbeing, family entertainment, kids entertainment, tips for the family home, child-friendly recipes and parenting. Try our pregnancy due date calculator to determine your due date, or our ovulation calculator to predict ovulation and your fertile period. Our pregnancy week by week guide shows your baby's stages of development. Access our very active mum's discussion groups in the Essential Baby forums or the Essential Kids forums to talk to mums about conception, pregnancy, birth, babies, toddlers, kids and parenting lifestyle. Essential Baby also offers a baby names database of more than 22,000 baby names, popular baby names, boys' names, girls' names and baby names advice in our baby names forum. Essential Kids features a range of free printable worksheets for kids from preschool years through to primary school years. For the latest baby clothes, maternity clothes, maternity accessories, toddler products, kids toys and kids clothing, breastfeeding and other parenting resources, check out Essential Baby and Essential Kids.