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 seaside_feral

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 JustBeige

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 Feral 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 shutterspeed

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 Feral Nicety

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.




1 user(s) are reading this topic

0 members, 1 guests, 0 anonymous users

 

Share the little things that make you smile

We're giving away a Mountain Buggy nano, the ultimate travel stroller - and here are some of the great entries so far.

Toddler pleads for return of "stolen" nose

A two-year-old's reaction to a game of "got your nose" shows it doesn't take much to make a toddler cry.

The 15 photos new parents share (and five they don't)

From the first scan photo to the baby covered in cake at their first birthday party, there are 15 photos most parents seem to share - and some they don't.

Doctor sings first Happy Birthday to newborns

His job is to deliver babies, but this US obstetrician also has a unique way of celebrating the miracle of life.

Breastfeeding friendly caf goes viral

A photo of a breastfeeding-friendly sign in a cafe has been posted to Facebook and shared by hundreds of mums around the world.

First look at the Bugaboo Bee3

The newest Bugaboo Bee ? the Bee3 ? offers a variety of improved features, including a much asked-for bassinet and a rainbow of colour combinations.

Childcare costs, not paid leave, the real issue for parents

Given the choice between maintaining their wage for six months to have a child, or having a reduced rate of pay for a time but a better deal on childcare when returning to work, there are no odds on what most working parents would choose.

Win a Mountain Buggy nano

We?re giving away the new Mountain Buggy Nano - the lightweight travel buggy! So show us the little things that make you smile for your chance to win.

We lost three babies in two years

Our first pregnancy ended the way we all expected it to - with a healthy, happy baby in our arms. What a true blessing he was, for we were not to know the heartache we were about endure.

Family turned back from doomed flight MH17

'There must have been someone watching over us and saying, 'You must not get on that flight,' says mother who narrowly avoided boarding the Malaysian Airlines flight which exploded in mid-air over the Ukraine last night.

The myths and facts about "normal" breastfeeding

When it comes to successful breastfeeding, there is a wide variety to what is "normal", according to new research.

Adorable Skeanie loafers for kids

Your little toddler or preschooler can now get their nautical on with a new range of classic loafers by Australian show brand Skeanie.

My baby is hypermobile

For months, I have been telling myself not to worry that Jasmin isn't crawling or walking. This week I heard the term hypermobile for the first time.

When you don?t bond with your baby

They say that there is no bond greater than the bond between a mother and her child. But for some women, the mother-baby bond takes more time and effort to develop.

Yumi Stynes: Having a baby after a 10-year break

After a long break, Yumi Stynes gets a reminder of the pain - and the pleasure - of giving birth.

Grieving father asks for help to Photoshop his daughter's image

When Nathan Steffel's daughter Sophia died from a liver condition at just 6 weeks old, he reached out for someone to create a beautiful image of his little girl.

Raising kids in a 'low media' home

Can you imagine a life without TV or computers? Some parents are opting for a low-tech, screen-free life for their kids.

Download now: Essential Kids Activity Finder app

Got bored kids? Quickly find the best activities for kids wherever you are in Australia with the Essential Kids app.

 
Advertisement
 
Advertisement
 
 
 

What's hot on EB

Win a Mountain Buggy nano

We?re giving away the new Mountain Buggy Nano - the lightweight travel buggy! So show us the little things that make you smile for your chance to win.

Be careful what you say, your baby is listening

The importance of speaking to your baby even if they are not old enough to answer back has been highlighted by new research.

The beautiful moment a baby was born at the side of a road

It's not where she expected to give birth, but mum Corrine Cinatl is delighted that her daughter's roadside arrival was captured in a series of beautiful photos.

Doctor sings first Happy Birthday to newborns

His job is to deliver babies, but this US obstetrician also has a unique way of celebrating the miracle of life.

The Nappy Collective starts new drive

It's that time of year when the dedicated volunteers at The Nappy Collective do their bit to help out mums and children in need - and they need your help.

Baby shower cake wrecks

From misshapen cake babies to questionable text, from odd colour choices to internal organ recreation, these are the baby shower cakes that taste forgot.

Photographer captures the beauty of adoption

The love of a family is usually tough to capture on camera. This is an exception.

Pregnancy progression photo ideas

Want to record your pregnancy as your belly grows? Here are some creative, fun ideas for photo shoots along the way.

The myths and facts about "normal" breastfeeding

When it comes to successful breastfeeding, there is a wide variety to what is "normal", according to new research.

Tin can craft and DIY ideas

Got a few old formula, Milo or coffee cans around the house? Use these fantastic upcycling ideas to create items for around the house and yard.

Dads meet their newborn for the first time

Emotional photos of two fathers meeting their newborn son have resonated with viewers worldwide, attracting thousands of Facebook likes and shares.

Skin safety isn't just a summer worry

Lax about the slip slop slap with your kids as weather turns cooler? Here's a reminder as to why we have to remain vigilant for our children?s future health.

Personalised baby gifts

We've scoured the internet to find gorgeous personalised keepsakes and nursery decor to record baby name and dates. They make great gifts for christenings, name days and birthdays! (All prices in AU.)

Creative sleeping baby photoshoots

See how some parents and photographers have captured sleeping babies in unusual positions and using different props.

DIY kitchen and food hacks

DIY your way to a better kitchen and make cooking easier with our clever hacks. (Some content reproduced with permission from mashable.com.)

Winter warmers for babies and toddlers

Your baby or toddler will be nice and snug in these beautiful and fun winter pieces. Most are hand-made or knitted, and they're all designed to keep your little one toastie - and adorable!

 

Mind, body, beauty, life

Making time for me

We look at your wellbeing, covering health, relationships, beauty and fashion, mind and body.

 
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.